Q&A: Should you let the kids testify in your divorce case?


Should you let the kids testify in your divorce case? Should a child be called upon to testify in a divorce case and bear witness against their own parent? This is a tough question. It should be an easy answer “no.” But there are those extenuating circumstances which would warrant exceptions, I guess. The court is the one who will make the ultimate decision about the children and whether they will be called a witnesses in a divorce. The court will examine all the evidence as well as confer with the Guardian ad litem and the law guardian and any experts such as child psychologists and make a determination in the best interest of the child.
The questions you need to ask yourself if you are faced with making this question of whether you should let the kids testify in your divorce and custody case are:

  1. Why do you really want your child to testify in the case?
  2. Is the testimony concerning conduct directly impacting the child? Or impacting you? (example child abuse or custody/neglect vs spousal abuse?) What are you hoping the child’s testimony will prove?
  3. Have you been tutoring the child to elicit a certain type of testimony on the witness stand and how confident are you that this will not backfire?
  4. How old is your child?
  5. What it the child’s personality and do you think this involvement in the divorce case will have a long term impact on the child whether emotionally, cognitively or otherwise?
  6. What emotional and psychological impact will this have on your child? Have you asked experts like child psychiatrists what they think?
  7. Is the child generally competent to testify on this issue? Do they have personal knowledge of the issue you want them to testify about,
  8. Could the court appointed GAL (Guardian ad litem) testify on the child’s behalf instead and thus spare the child this intrusive interrogation?
  9. Are you at all concerned about the trauma this whole situation is causing the child and that the this could cause the child long term anxiety and depression?
  10. Will the child be testifying in open court or will this be an in camera examination in the privacy of the judge’s chambers?
  11. Will the other parent subject the child to cross examination?
  12. Do you think the child’s relationship with the other parent will suffer irreparable harm after this cross examination?
  13. Do you think asking the child to testify is in the best interest of your child?

Your answers to these questions should guide and inform your decision of whether to let the kids testify in your divorce or not.

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