When to Use Child Testimony / by Cassandra Hearn

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Going to a final hearing for divorce or custody requires a lot of preparation. Both parties must introduce evidence, including testimony, to support their proposed custody order and demonstrate to the judge that their order is in the child’s best interest. Parents and their attorneys may use a variety of different sources to prove their case, such as friends, family members, teachers, or medical professionals. In some circumstances, parents may believe that calling a child to the stand to testify is the best way to prove their case. California has specific rules about when this may be allowed. Although there is no law specifically allowing or disallowing child testimony, the court will only allow a child to address the court if it is in the child’s best interest to do so. There are factors set out in the statute for a court to consider, including: the child’s age, whether the child can understand the nature of testimony, whether the subject that the child will testify about is relevant to the court’s decision making process, whether the child wants to testify, and whether allowing or denying the child’s testimony could put the child at emotional risk.

The law recognizes that asking a child to testify in a family law case is a delicate and potentially traumatizing event, especially for a young child. Accordingly, the law provides that a judge may create an atmosphere where the child can be open and comfortable in giving testimony, such as hearing from the child on the record in the judge’s chambers. The court is also admonished to take special care in making sure a child is not harassed or embarrassed by the proceedings.

Parents should think carefully about using a child’s testimony. Although a child may have first-hand information about the way a parent is behaving during visitation, for example, that does not mean that it is appropriate to call the child to testify about these matters. A child could easily feel that he or she is “tattling” on the other parent, and this could undermine parental relationships as well as emotionally traumatize a child. If a child wants to testify, parents should carefully consider the child’s age as well as motivation for wanting to testify before allowing this to take place.

Deciding what kind of evidence is necessary to prove your case requires the guidance of an experienced attorney. Contact us today at 619-800-0384 to discuss your case and what we can do to help you achieve your goals