Posted in: Custody & Visitation
A child custody proceeding can take many forms, and it can happen for a number of reasons. Although the most common reasons include divorce and separation, a custody proceeding can also follow paternity questions, abuse or neglect allegations, deaths of family members, or incidences of domestic violence. During a child custody case, a court has the power to define some of the rights that a parent or guardian has over his or her children, including legal custody, physical custody, and visitation rights. In order to make these decisions, the court looks at several factors to help determine an outcome that is in the best interests of the child. These factors include the wishes of the parents, the wishes of the child, and the well-being of the child (among other things). Sometimes, taking testimony from a child is necessary in order to make this determination.
Under Pennsylvania law, a child can give testimony in court as long as a few basic conditions are met. Initially, the child must know the importance of telling the truth. Assuming this is the case, the child must also be able to remember the facts and produce them in an understandable manner. Courts regularly allow child testimony under these circumstances, as long as the method used to take the child’s testimony is not unduly suggestive or coercive. Experienced lawyers and judges will often work together to make sure that the person taking the child’s testimony does so in a way that is the least upsetting to the child. This may include preparing the child in advance for the courtroom experience, allowing the child to testify without a courtroom audience, appointing a guardian ad litem (who takes the child’s place in the courtroom) or, in some cases, allowing the child to give testimony from a more remote area with the use of video technology.
A child who provides testimony has the potential to drastically influence the court’s decisions, so it is important to understand the reasons why the court would want to hear what a child has to say. There are two basic types of testimony a child may offer: testimony about where the child would prefer to live and testimony concerning the facts of the case. Although a child’s choice about where he or she wants to live is always important, it does not always have a major impact on the court’s decisions. Often, the age of the child at the time of the custody proceeding will influence the weight a court will give to that child’s preference. In simpler terms, a judge making a physical custody decision may be more likely to rely on a fourteen-year-old child’s choice than a four-year-old child’s choice. Unfortunately, the child’s wishes may not always match up with the best interests of that child.
A child’s factual testimony may become practically essential in a custody proceeding when the parties disagree about the facts of the case. It can be invaluable to a judge who is trying to make a decision based on the child’s best interests. The judge may want to know specific information about the child’s regular home and school routines, the ways that the child is disciplined, the way the child feels about his or her situation, or the kinds of relationships the child has with family and close friends.
The overall nature of the custody proceeding may further determine the particular kinds of facts the court will be seeking. For example, in a custody proceeding held during the course of a divorce, the court may want to hear facts about the different homes each parent will be able to provide for the child. In a custody proceeding held after an incidence of domestic abuse, the court may want to hear more facts related to the behaviors of the parents. The exact nature and length of a child’s testimony depends on the details of the case, and also upon the ability of the child to provide helpful, relevant information.
Like any witness, a child has the opportunity to give his or her version of the facts of a case, and every case is different. If a court does not require a child’s testimony, the decision to include it in a particular custody proceeding should only be made after a careful consideration of the nature of the facts in that case, as well as the nature of the child. Although a family member may be able to predict many of a child’s responses and behaviors in a courtroom, there are chances that the child may provide some unexpected testimony. Even though a parent or guardian is often in the best position to know the most relevant facts and understand a child’s personality, an experienced family law attorney can help determine exactly how and when a child’s testimony will help in a particular case.