Do Children Testify in Court During Custody Disputes?

Custody disputes can become vicious battles between parents. Accusations and name-calling are unfortunate occurrences when parents fight for sole custody or to restrict the other parent’s access to the child.

The conflict inside the courtroom would only add to the stress and emotional upheaval many children already feel. Using children simply to score points in a legal proceeding ultimately hurts everyone involved.

Putting children on the witness stand in a child custody dispute should be avoided whenever possible, but there are situations where their testimony is necessary.

Calling a Child to Testify in Court

New York judges hesitate to have children testify in open court. They resist placing the child in the middle of the feud because the court wants to preserve the child’s relationships with their parents. The judge also does not want to unduly cause the child emotional stress. Forcing the child’s testimony in court is unusual, but it does happen. These rare occasions typically only involve older children.

The parent has their attorney file a motion requesting the child’s testimony be heard. If the judge agrees, the court will set firm boundaries on the tone and types of questions that can be asked.

A child may be asked to testify in court in the following situations:

  • There are allegations of domestic abuse
  • There are allegations of drug or alcohol abuse
  • There are accusations of harmful parenting skills

A child may be asked to testify in family law order of protection cases as a witness to a specific incident. Like custody cases, this testimony is also bypassed whenever possible.

Children Have a Voice in Custody Determinations

Instead of testimony in open court, judges can use alternative methods to obtain feedback from children caught in custody conflicts.

A custody evaluator can be appointed by the judge to gauge a child’s wishes. Through separate interviews with the parents and children, the evaluator gains a sense of the relationship the child has with each parent and surfaces any concerns or fears of the child. The appointment of a law guardian (a guardian ad litem in other states) is another option available to the court. While a custody evaluator focuses on determining the best interests of the child, the law guardian is tasked with representing the wishes of the child in the trial.

In some situations, the judge speaks with the child in an “in camera” interview. Despite the name, the interview is not necessarily videoed. The term is Latin meaning “in private.” A court reporter records the interview. Parents cannot be present. 

All these alternative methods are nonconfrontational and transpire in environments that are less formal than the courtroom.

Older Children’s Opinions Have More Weight

When a Nassau County judge decides custody arrangements, they are required by state law to base their conclusions on the best interests of the child.

The best interests of the child are evaluated by considering numerous factors:

  • Stability for the child
  • Conditions of each parent’s home environment
  • Where siblings live, if applicable
  • Where the child has greater educational opportunities
  • The finances of each parent
  • The parents’ arrangements for childcare
  • The parent that has served as the primary caretaker
  • Any evidence or history of excessive drug or alcohol use by either parent
  • Any evidence of domestic violence
  • The mental and physical health of both parents
  • Evidence of abuse, neglect, or abandonment
  • The child’s preference
  • The court’s observations of the parents

The child’s preference is a consideration, but the weight of this element depends on their age. A 3-year-old does not have the understanding and reasoning ability to truly understand what is best for them. On the other hand, a 16-year-old has a better understanding of the situation and maturity level. Their opinions will have more sway with a judge. However, the minor’s opinion does not outweigh the other factors. When collectively considering all aspects, the judge has the authority to order a custody arrangement that does not align with the child’s wishes.

Legal Guidance for Parents in Custody Disputes

Child custody disputes happen in a variety of circumstances: part of a divorce action; modifications post-divorce; conflicts between unmarried parents; and paternity cases. No matter the basis for the legal action, parents need smart and aggressive legal counsel to represent them.

At Jason M. Barbara & Associates, P.C., our compassionate yet tenacious representation has helped many clients through custody negotiations and trials.

Schedule a free consultation with us by calling (516) 406-8381 or reaching out online.