Children’s Testimony in Custody Cases

The question of what is in the best interest of a legal client is not always as easy as they make it sound in law school. This is particularly true in family law. To “zealously” represent your client’s interests as a parent can very well mean making a very difficult call regarding child testimony. No parent wants to damage his or her children, but when the future of the parent-child relationship seems to be hanging on the ability to set the record straight in a court proceeding, there could be a “lesser of two evils” decision facing the parent and the attorney.

The following are factors that I consider whenever I am faced with the prospect of putting a child on a witness stand:

1. Have Other Options Been Pursued? There are many ways to avoid a child having to testify in family court that may actually provide better evidence regarding the child’s best interest, for example:
   1. A Guardian ad Litem. The challenge here is often a lack of funding for the particular kind of case – But a qualified GAL will provide valuable feedback that usually avoids any need for children in that case to testify.
   2. The Child’s Therapist. Reports, correspondence, and at times live testimony from a therapist who has a relationship with a child can provide valuable input as to the child’s needs. The challenge here is that most therapists are very protective of any information that they consider confidential or privileged, and may resist a subpoena. Also, therapists are not qualified to give an opinion on legal best interest standards, and cannot give recommendations for custody or parenting time (contrary to what many believe).
   3. Custody or Parenting Time Evaluator. There are evaluators who are both qualified and willing to meet with minor children, either in an early neutral evaluation setting, or as part of a full evaluation that would be filed with the Court. The Early Neutral Evaluation option is by far the cheaper process, but one would have to find a provider who is willing to meet with minors, AND be aware that the early neutral evaluator would not be available to testify in court. Whereas with a full evaluation, the Evaluator would be subject to giving testimony regarding their report and recommendations.

2. Will the Parties Agree to an “In Chambers” Interview? If the above options cannot dispose of the need for testimony from a minor, the next strategy may be to agree that the child will speak with the judge in chambers instead of the open courtroom. This can be done either on the record or off the record, and with attorney’s present or not. These decisions will be made by the parties, their attorneys, and the judge, and will depend on the nature of the contested issues, the scope of the testimony needed, and whether the testimony would be needed to challenge a later decision by the judge.

3. The Impact of having the Child Testify on the Parent-Child Relationship. The Minnesota “best interest” statute makes reference to the importance of the future relationship of a child with both parents. There is a difference between a 16-year-old testifying to how often they spent time with one parent or other purely factual issues, and having a 9-year-old testify that she would rather live with her mom. Kids have no way of understanding the future implications of these actions for themselves and the parents. The presumed age of competency to testify is 8 years of age, but each judge must determine a minimal competency through an interview before taking testimony from a child. Parental conflict has a profound impact on children even when they are not involved in the court proceeding, so to involve them in this way should only be considered in dire situations, and as a last resort. Any testimony they are required to give to the court that results in increasing or decreasing the role of one of his or her parents will be putting them in a position of choosing which half of their identity to disparage. It’s a lose-lose proposition for the child.

In conclusion, while I have included children on witness lists for trial, I have always looked for every other way to get the needed information to the court. Over the long haul, I have seen how parents who are involved in custody disputes do far better at keeping their children in their lives by simply maximizing the quality of whatever time they have with them. By the time any child reaches the age of 17, Minnesota Appellate Courts have stated that they are not going to enforce a parenting order against that child’s wishes. The time will come when the quality of the relationship, not the quantity, will obviously matter more.