Children as Witnesses in Divorce Proceedings

In recent years, children have increasingly been called upon to be witnesses in their parents’ divorce proceedings. In some contested fault-based divorces, children have supplied testimony as to cruelty or adultery by one of the spouses. In other instances, children have been a part of custody matters, including offering testimony as to being poorly supervised by one of their parents and as to any neglectful conditions in the family home.

If a child is under the age of 18 when he or she is called to be a witness in a divorce proceeding, his/her competence to be a witness is first examined by the court before any testimony is given. Such determinations, particularly when a child is of a very young age, can be difficult to make. Generally, the court seeks to know (a) whether the child has personal knowledge of the events to which he or she will be testifying to; (b) whether the child is able to recall the events; and (c) whether the child is able to recognize the importance of telling the truth in his or testimony and the consequences if the truth is not told. If the court is satisfied that the child understands those issues, the child will be allowed to testify. In some jurisdictions, children of a pre-school age have been permitted to be witnesses.

As with all witnesses, if a child has been called to testify on behalf of one parent in a divorce proceeding, the child will be subject to cross-examination by the other parent. Some courts have been reluctant to allow very young children to be subjected to cross-examination, citing the emotional and psychological pressures of such questioning. Additionally, in some “fault-based” divorce proceedings, children have been excluded from testifying when it would be harmful to the child.

One alternative in the divorce context, particularly with respect to custody matters, has been the use of in camera examinations for children, in which the child can testify in a setting that is less emotionally-charged than the actual courtroom. Such examinations, which are often conducted in the presence of the parties’ counsel, can help to alleviate the anxiety and fear children may feel at having to testify “for” or “against” one of their parents. A number of states will not allow in camera examinations of children to form the sole basis of a custody award; however, other states have allowed such testimony to be considered as one factor when the judge makes the custody determination.

Conclusion

Children can be witnesses in their parents’ divorce proceedings, so long as they are shown to be competent witnesses and courts are satisfied that the emotional and psychological impact of such questioning is not overly harmful to the child.