When determining whether a child should testify in a divorce hearing, courts consider a number of different factors. Above all, they will want to make certain that the child is mature enough to testify. To that end, age is a significant factor, but not the sole determinant. The bottom line for judges is the child’s competence.
It should be stated, when it comes to children, maturity and competence are only part of the puzzle. It is also important to clarify the reasons for putting a child on the stand. Without a satisfactory justification, it can be very difficult to persuade a court to allow a child to testify in a divorce case where the child will help decide which spouse gets which property. Courts often allow children to testify when it is in relation to custody – of course, in these cases, the child must still be mature enough to be a witness.
Maturity and Competence
So how exactly do courts decide whether a child is competent enough to take the stand? When it comes down to it, age is not really a predominating factor – in fact, a three-year old girl once took the stand, though this was a criminal case involving the child. The primary concern of courts is whether the child is mature enough. But what criteria does one use to determine a child’s maturity level?
To begin with, a child should be able to clearly communicate ideas. But some children can communicate clearly while lacking the ability to distinguish between truth and lies or fact and fiction. So it is very important that a child understands this distinction and recognizes its importance in a court of law. This becomes more complicated with very young children, as lawyers must work very hard not to overwhelm the child and influence his or her testimony. If the attorney sways the witness in any way, the judge may call a mistrial.
Weighing the Child’s Preference
How do courts weigh the opinions of children in a custody battle? To be sure, the older a child, the more likely it is that courts will heed his or her testimony. Once a child is a preteen, a judge will most likely give full weight to the child’s preference. But if the child lets on in any way that he or she is trying to get out of living with the harsher parent, the judge will often look past the testimony, prioritizing the child’s best interest over and above his or her preference. In this regard, a child’s maturity really matters.
Divorce law varies from state to state, but since most states don’t consider fault in determining the division of property, children don’t need to testify in regard to the specifics of a faltering relationship. Children are most often called to the stand when a parent has allegedly harassed or abused the child or spouse. Thus, a child’s testimony is most useful when it comes to issues of custody or alimony. In the rare case that a court considers fault in determining the outcome of a divorce, putting a child on the stand is a very tricky matter and should not be taken lightly.
To that end, it is important to ask yourself a few questions before putting your child on the stand. Is it truly necessary to have your child testify? Will the child’s testimony further clarify the situation in the household? If you’re sure the child is struggling with the custody arrangement and can handle questioning about the divorce, then you may want to put him or her on the stand. However, if you are using the child’s testimony as an instrument of revenge or if you’re using your child to get a better deal, you should rethink your decision. Additionally, you should consider the long-term effects of putting your child on the stand. At the end of the day, your decision should be in your child’s best interest.