Can a Child Testify in a Custody Hearing?

Can a Child Testify in a Custody Hearing?

As if going through a divorce with children wasn’t bad enough, many parents are rightfully concerned that their small children will be put in the horrible position of being forced to “choose” between mom and dad. They wonder – can a child testify in a custody hearing? – While picturing a small child being put on the stand with a judge in a black robe having them sworn in to testify under oath. Fortunately, this is just not how it works in real life. Experienced Mt. Pleasant custody lawyers can often help dispel these myths and give peace of mind to those who are facing a painful custody dispute.

How the Court Determines Custody

A family court judge is bound by statutes that provide guidance on how to determine the custody of a child. There is no specific age at which a court will always consider or never consider a child’s wishes, but in general, it is just one of many factors the court is to consider. For parents who may be asking: can a child testify in a custody hearing? – This is important to note.

Section 63-15-240(B)(3) of the state’s Family Code says lists the “preferences of each child” as just 1 of 17 factors that go into determining what is in the “best interests of the child.” Therefore, all things taken together, it is generally a relatively small consideration.

The Older the Child, the More Likely a Court Will Consider Preferences

While it may not always seem like it to those going through a divorce or custody dispute, the law is intended to be fair and make sense – even if it fails to do so at times. While the law does not expressly say how old a child must be to state his or her preferences, generally most judges will not consider or solicit the wishes of a child under 12. By about 13 or 14, some judges may consider the wishes, provided they are reasonable. Once children are around 16 or 17, a judge may be far more willing to entertain their wishes. Even then, such wishes would generally be expressed through a guardian ad litem.

Working With a Guardian ad Litem

Since the law says that minors (under 18) require protection in a custody or divorce case, the court will typically appoint a neutral party called a guardian ad litem (“GAL”). This person is generally either a specially trained lay person or an attorney who is not involved in the present dispute in any way. Many retired judges, attorneys, social workers, and even teachers choose to be GALs. Section 63-3-810 of the Family Code provides for the specific qualifications of a GAL.

Getting Help With Your Custody Case

If you are facing a fight over the custody of your children, you may be surprised who straightforward and clear the whole process can be once you’ve had a chance to talk to an attorney. Sometimes it helps to just have someone with experience handling these cases sit down with you and walk through your options and answer any questions you may have like: can a child testify in a custody hearing?

When you are getting divorced or fighting over children, it is easy to feel helpless or lost, but the attorneys of Klok Law Firm LLC want to reassure you and help you through what might be the toughest time of your life. To schedule an appointment with an attorney, contact us today.


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