CLIENT INFORMATION LETTER # 50
TESTIMONY OF YOUR CHILD
The purpose of this handout is to assist you in answering questions
that you may have regarding the testimony of your child in a custody or
visitation case and the law in North Carolina. It is, of course, impossible
to answer all of your questions in a short brochure such as this, so we want
to encourage you to ask other questions of your lawyer at the appropriate
time. Feel free to take this handout with you so that you may refer to these
answers from time to time and have a better idea of how your case is being
handled. If you have any comments or suggestions for improving this handout,
please do not hesitate to let us know.
||I've heard my daughter can tell the judge where she's going to
live when she becomes 12 years old. Is that right?
||Not quite. Nobody can tell the judge in a custody or visitation case
what to do -- not you, not your lawyer, and certainly not your child. Not
even at 17 years and 6 months old, just six months from the age
of majority in this state, can your child tell the judge what arrangements
may be made for custody or visitation. The judge decides these issues based
on the best interest of the child, whether or not the child agrees
with the decision.
||Well then, can my daughter ever tell the judge where she wants
to live and with whom?
||Of course. Children often testify during custody and visitation trials.
The cases in North Carolina state that it is very important for the judge
in such a hearing to listen closely to the wishes of the child of the plaintiff
and defendant (the parties to the lawsuit). But the cases also emphasize
that the judge should only give strong weight to the preference of a child
of suitable age, discretion and maturity. That means, basically, that
if your child is really old enough and grown-up enough (and these
are two different things!) to know with whom she wants to live, along with
some good reasons for the decision, then the judge should be willing to listen
to her explain her preferences.
||Are there any age limits for testimony? How young can a child be?
Can I also have my three-year-old son testify that he hates his father and
wants to stay living with me?
||Not so fast! There are limits to everything. The youngest age of a child
that testified in a court case that we've been able to uncover is six years
old. It would be pretty hard for a judge to give "considerable weight" to
the testimony of a child who is younger than six (and, in many cases, to
children who are between six and nine but are simply not mature enough).
The older a child is, the more weight will be given to her testimony. At
age 16, for example, a child's testimony -- if straightforward, believable
and honest (not subject to bribes or promises of rewards) -- would be very
helpful to the judge and would probably be followed most of the time if the
rest of the case also supports the child's preference. Also, you
should understand that the younger the child is the less the judge will
likely consider his/her testimony.
||Well then, can the judge disregard my child's wishes
||Yes, indeed. There's no rule of law that says the judge must follow the
child's preferences. In a 1966 case, the North Carolina Supreme Court stated
that a child's wishes are not controlling in a custody dispute but must yield
to the standard of the best interest of the child. And in a 1993 case,
the Court of Appeals upheld a trial judge in Wake County who ordered visitation
rights for a father over the strong objections of the teenage daughter, stating
that visitation in such cases is "the father's right," which cannot be undone
by the wishes of the child.
||Does my son testify in the judge's office or on the witness
||Unless the parties agree otherwise, the child testifies in open court
like any other witness. If your lawyer cannot get the other attorney to agree
to the son's meeting with the judge "in chambers" (i.e., the judge's office),
your attorney may at least make a motion to clear the courtroom, as would
be the case in a juvenile court hearing, but whether this motion is granted
depends on the judge. There is no doubt, of course, that testimony in chamber
is the most comfortable way of presenting testimony, not only for the son
but also for the judge, and most judges will do a little "jawboning"
of their own if it looks like the child is going to testify to see if the
attorneys will agree to the "in chambers" approach to this important testimony.
||Suppose we agree to let my son testify in the judge's chambers
and so does the other side. Is it just Johnny and the judge in there? How
will I know what he says? What if he goes off the deep end and starts
saying untrue things about me?
||The judge can hear the child in chambers without the parties present,
assuming that they consent to be absent. The judge can also exclude the attorneys
if the parties consent. But the judge is not allowed to speak alone with
the child with no record at all of what was said. A custody or visitation
trial, after all, is supposed to on the record, meaning that everything is
taken down and recorded (either by court reporter or by tape recorder). Without
any record of the conversation, there is no end to the mischief that could
occur based on the child's comments, well- intentioned or otherwise. So the
judge will usually make arrangements for one of the above two methods of
memorializing the meeting in chambers with the child when the parties and
the attorneys are not present
||Should I be at all concerned about how testifying
could affect my child?
||Absolutely! Remember that your child has a relationship with
you and the other parent. It is often very difficult for children
to "take sides" with one parent over another. Indeed, while
a child may say to Dad, "I want to live with you," he/she may
also be saying the same thing to Mom. When a child testifies
he/she is betraying one of her parents.
If you have any question in your mind as to how or if this will
adversely affect your child, we suggest taking your child to a trained
psychologist who can make a recommendation for you. Please let us
know if you need a referral for this purpose.
[rev. October, 2002]
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