Most parents would prefer that their children have as little to do with a divorce as possible. However, there are some instances where it may be necessary or even beneficial for a child to testify in court or speak with a judge. Before your child goes to court, learn more about the risks and benefits associated with child testimony.
Competency And Best Interests Of The Child
In order for a child to testify at all, the judge in the divorce case must find the child competent. This means that the child is mature and articulate enough to express his or her feelings clearly, and can do so without undue influence from either parent.
While the child’s age may affect his or her ability to testify, there is no age requirement or cutoff for testimony. Some child witnesses may be very young and yet able to testify, and some older children may not be able to handle the stress of being in court. Before any child testifies, the judge will have a conversation with him or her to determine three general things: whether the child was actually involved in or witnessed the events about which he or she is testifying, whether the child is able to remember these events and articulate them, and whether the child can understand the importance of telling the truth in court.
After the judge determines these factors, he or she will consider whether testifying is in the best interests of the child. For example, if a parent wants to call a child to testify, the judge will need to weigh whether the testimony would cause more harm to the child than it would good to the parent. If the child would be harmed psychologically or emotionally by testifying in court, the judge may not allow the testimony to occur.
In Camera Hearings
In many cases, a child can testify in what is called an in camera hearing. In camera means that the hearing takes place inside the judge’s chambers or office, rather than in an open courtroom. This usually allows the child to feel more comfortable and less intimidated by the formality of the courtroom setting.
In camera hearings are often used during child custody decisions. Usually, if the child would prefer to live with one parent over the other, the child can have an in camera conversation with the judge to express his or her preferences. These types of hearings take place away from the child’s parents, so that he or she is not unduly influenced by either parent.
In Court Testimony
In some cases, a child may be required to testify in open court. This could be the case if a parent needs a witness to corroborate an abusive home situation, a neglectful living environment, or other difficult circumstance.
It is important to consider whether or not testimony from the child is strictly necessary. A child who testifies is subject to cross examination from the other parent’s attorney, which can be traumatic even for adults. Though attorneys will usually use kid gloves when questioning a child, the experience can still be very stressful.
In Washington State, some of this stress can be alleviated by using remote video testimony. State law allows children to testify in locations outside the courtroom, where the child cannot see his or her parents. This may help the child feel more comfortable, rather than like he or she is “betraying” the other parent.
Considering Your Options
Children are able to be witnesses during divorce proceedings, as long as they are competent and the testimony will not be overly harmful to the child. However, this is not a decision you should take lightly. If you think that your child will need to testify in court, speak with your attorney first about alternative options.
At Ashby Law, our attorneys will help you protect yourself and your children during a divorce. We know that you may face difficult decisions, and will be there to guide you every step of the way.
To find out how we can help, contact our office today by calling 509-572-3700.