Can a Child's Testimony Determine the Outcome of a Custody Case? Case Study:
"I recently spoke to a friend who has been going through a custody battle for a few years now. This friend had initially been granted majority custody after a judge’s preliminary ruling, which allowed the child to live with my friend. However, that soon changed, and the judge allowed the child to live with the parent with partial custody while another hearing was pending. The reason for that hearing was so the judge could speak with the child. After having spoken with the child, the judge then gave majority custody to the parent who initially only had partial custody. My question is: is it legal to base a decision in a custody battle on the testimony of a 6- or 7-year-old child? From what I’ve heard and read this is incorrect and possibly illegal. Who would my friend have to talk to about this seemingly illegal proceeding? — Just us, Imperial"
Out of respect for privacy and confidentiality, this Probe question was edited to remove any information that could make it overly easy to identify the parties involved.
That said, there still remains a lot of unknown factors that may have influenced the judge’s decisions.
Yet, if there is one certainty, it is the fact that judges do not take child custody cases lightly, said local attorney Ryan Childers, of Childers & Associates. Without knowing any of the particulars of the case, Childers did state that the fact that the judge requested to speak to the child suggests the child’s testimony was of utmost importance in determining custody arrangements.
The move also suggests there may have been no other alternative. Courts have the discretion to request the testimony of a child up until they are 14 years old. Once a child becomes 14 years old, the courts lose that discretion, Childers said.
The court also goes to great lengths to determine whether a child understands the difference between telling the truth and lying, by evaluating a child’s mental maturity and their understanding of the obligation to tell the truth in such a court setting. While it’s not all that common for a child of 5 or 6 to be placed in that position, it is not inappropriate for a judge to make such a request, Childers said.
While Probe was never intended to be a legal advice column, the Probe writer’s friend may want to seek some legal advice for a more professional opinion.
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