In family law cases, parents often ask me to allow their child to testify to tell the judge what “really happened.” Parents often think their children have “discoverable” information. Sometimes, the children have witnessed fights, arguments, or other “bad” conduct. Often, a parent has disparaged the other parent to the child when there has been a specific court order that neither child shall disparage or allow others to disparage the other parent to the child, and the parent who has been disparaged wants their child to testify to prove that the other parent has violated the court order.
California does not have a minimum age requirement in order for a child to be permitted to testify in court. Instead, judges are given discretion to determine whether a child is competent to testify. In determining whether any witness is competent to testify, a judge must look at (1) whether the witness is able to express himself or herself so that he or she can be understood (either directly or through interpretation); and (2) whether the witness understands his or her duty to tell the truth. Sometimes, the law discusses this second requirement as a child’s ability to tell the difference between a truth and a lie. The law has found that some young children are able to understand the difference between the truth and a lie, and children have been allowed to testify in reported cases where they were the victims of alleged sexual abuse.
However, perhaps more importantly, a judge is also required to base his or her decision on what is in the best interest of the child, not is on what is the best interest of the parent or the parent’s case, and must be considered on a case-by-case basis There is no rule which requires a judge to allow a child to participate in court, nor is there a rule which prohibits them from doing so.
I was recently the attorney for a father at an evidentiary hearing for domestic violence where the mother wanted their 5-1/2 year son to testify to the domestic violence he allegedly witnessed by the mother towards the father. The father denies that there was domestic violence and believes the mother is making these claims solely to further her case for custody of their little boy. The attorney for the mother argued vehemently that, other than the mother, the son was the only person who had witnessed the alleged violence. The problem in this case was that there was considerable evidence that the mother greatly influenced the little boy’s thinking in this regard. When asked by a court evaluator who told him to say that his father hit his mother, he answered, “my mommy.”
I argued that the child should not be subjected to being called as a witness, especially as he had already been seen and questioned by several evaluators. I did not believe that the child would ultimately support the mother’s allegations, but the child’s father was gravely concerned about the impact of all the questioning of his little boy regarding these claims. I personally do not believe that children should be called to testify in family law cases against the other parent. The court should always be focused on the best interest of the child, and not how the child can help one parent “win” their case. Allowing a child to testify puts the child in a no-win situation. Any statement a child makes risks hurting their relationship with one of their parents. And parents are supposed to protect their children from harm. Isn’t it harmful for a parent to ask a child to testify to further their own agenda? Isn’t divorce hard enough on the children without asking them to chose sides?
In custody cases, the law mandates that the court must consider the wishes of children when they are of sufficient age and maturity. Usually, this does not happen by way of a child testifying in court. A child’s wishes more often are communicated to a custody evaluator who presents the child’s wishes about which parent he or she wants to live with to the judge. This is worlds different from having a child testify in court about conflict he allegedly witnessed between his parents.