Will my child be able to testify at the custody hearing?
The short answer is yes, in most cases children are able to testify at a custody hearing but the long answer of whether they should testify is much more complicated. Moreover, a child can be made to testify in open court, although it is rare, but it can be necessary depending on the situation.
See below for a detailed discussion from our Doylestown, Bucks County child custody lawyer.
We are often asked whether children are allowed to testify at a custody hearing. Judges often frown upon children being forced to testify and it is ordinarily counter-productive to have children testify in Court. Having your child testify puts him/her right in the middle of the controversy between the two parents and that can be very traumatizing for the child. Judges are very sensitive and attuned to the well-being and best interests of the children. In fact, the best interests of the minor child are the predominant factor the Court uses to make a decision in a custody dispute. Forcing your child to testify may show the Judge that you are not thinking objectively about the child’s well-being first, before your own wishes to have more custodial time, unless there is a truly compelling reason for the child to testify.
That being said, one of the factors the Judge must use to weigh in a custody matter is the “well-reasoned preference of the minor child.” The rules of evidence preclude a parent from testifying about what their child’s preference is or will be. This must come directly from the child and absent some other evidence proving the preference, the child must testify to the court. One way to avoid this is to have a custody evaluation performed. A custody evaluation is conducted by a mental health professional who interviews both parents and the minor children. Once the evaluation is completed, the evaluator will write a report which is then presented to the court. The evaluator will use the same custody factors as the Court and the “well-reasoned preference of the minor child” will be one of those factors. Depending on the circumstances, the judge can accept the findings of the evaluator and enter an order based on those findings, including the child’s preference.
The term “well-reasoned” is the key to whether or not a judge will put weight behind a child’s preference. Case law suggests that in order for a child’s preference to be “well-reasoned” the child must be of sufficient age and maturity to have a “well-reasoned” preference. This usually means the child must be at least twelve or thirteen years old depending on the child’s development. The preference must also be founded upon facts that promote the well being and best-interests of the child. For instance, the judge may completely disregard the child’s preference if it is based upon having more freedom and less supervision at one household, or having less chores with one parent. The child’s preference will carry much more weight if the child’s preference is based upon one household providing a nurturing environment compared to the other, as an example.
Another issue to consider is competency, meaning the child is able to understand the questions asked, is able to communicate answers to those questions, and the child is able to testify truthfully and knows the difference between right and wrong. Before a child can testify, the court must find the child is competent to testify by asking the child questions according to that criteria.
A child may be asked to testify as a fact witness, meaning they are to testify about an event or fact that occurred in the past. By way of example, this could be an event that involved abuse, conditions at a house, something that was said by one of the parties or an altercation between the parties. Before the child can testify as a fact witness, the child must be deemed competent by the Court as explained above
Does My Child Have to Testify in Open Court?
It is up to the Judge whether or not the child must testify in open court. The judge may have the child interviewed in Chambers. At a minimum, the judge must allow both counsel to be present at such interview and able to ask questions. The he testimony must be on the record, although it may be sealed by the judge so neither parent is able to read the testimony on the transcript. Pa.R.C.P. No. 1915.11