Child Testimony In Custody And Visitation Cases

Parents frequently ask whether their child should come to court to “tell the judge” which parent with whom they would rather live. Though to the parent this may seem like a simple and perfectly reasonable request, there are a few things to keep in mind when it comes to involving your child in court proceedings.

In determining what custody and visitation arrangements are in the “best interest” of a child, Virginia Code ยง 20-124.3 allows judges to consider the “reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.” In practice, however, it is very rare that a child of any age or intelligence level will be called to the witness stand to testify as to where he or she wants to live and the reasons driving such a preference. While your child, in the privacy of your home, may be adamant that they want go to court and be heard, it is unlikely that they comprehend the stress of sitting in a witness box in front of a judge and being cross-examined by two attorneys. This is a very traumatic ordeal for a child and will probably cast doubt in the eyes of the court as to whether a parent who is willing to put their child through such an experience, is really the person they should entrust with the child’s well-being.

As an alternative, some judges, with the consent of both parents, will speak with children privately in their chambers. This procedure, while appropriate and advisable in some situations, can have its drawbacks. For example, some judges disfavor putting children in the perceived position of choosing between their parents and for this reason, will not even ask children the ultimate question of where they want to live. Another concern is that parents will not know what their child said to the judge, therefore offering no chance for parents to explain why the child might have expressed such a preference (e.g., “Mom will buy me a car if I live with her.”).

To keep children away from the stress of courtroom testimony or a private interview with the judge, many judges will appoint a guardian ad litem to represent a child’s interests throughout the proceedings. In Virginia, all guardians ad litem are attorneys. They represent the child and have the responsibility of assessing the family’s circumstances and making a recommendation as to the arrangements that serve the child’s best interests. Guardians should meet with each child and, if appropriate, report to the court the child’s preferences regarding custody and visitation.

If you are involved in a child custody and visitation case and have further questions about child testimony, our family law attorneys are happy to meet with you for a one-hour consultation. Contact CowanGates at (804) 320-9100 or by email to schedule your appointment today.