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Will my child have to testify at my divorce trial?

This is Todd Burnham, the Founding Partner of Burnham Law, and an experienced family law lawyer with a superb record. In this post, I talk about the children’s part in a divorce proceeding.

Will My Child Have to Testify at My Divorce Trial?

A divorce is a very serious matter that affects both parties, regardless of the reason for it. It’s a huge change that both spouses will have to undergo and move on from. But it gets much more complicated when there is a third party involved: a child.

Getting a divorce while you and your partner have children is indeed going to be difficult because you have to consider how it’s going to affect your kids. They will experience the same pain and heartbreak that you will because they’ll be separated from a parent. It’s bound to be a difficult transition for them.

Because of the change that these children have to go through due to the divorce, it’s in the best interest of the parents to not get them involved in the tedious and distressing court proceedings. But what about in cases where the child’s opinion can have an impact on the outcome?

Generally speaking, the child is not going to be asked to testify in court. But they do play an important role in the outcome of the divorce proceedings and the formulation of the custody agreement. So the judge will want to talk to them and hear their concerns.

The child may be spoken to, but not in a courtroom where he or she can be exposed to trauma.

Interview with a Judge

No judge wants to put a child on the stand to testify about his or her parents’ separation. That will cause so much stress and pressure on them, which is not ideal, especially since they’re already going through a difficult transition.

One solution is to invite the child for an on-record interview with a judge. The interview will be held in a comfortable location with only a judge and the child in the room. This gives the judge an opportunity to hear out the child’s concerns without putting them on the stand in a courtroom.

Interview with a family investigator

Another option is to set an interview between the child and a family investigator or parental responsibilities evaluator. This is the preferred option because judges can sometimes be intimidating, and the child might not be as forthcoming with the judge.

A third party who is an outsider or not directly involved with the case can conduct the interview in a more personal and less intimidating manner. The child can see him or her as a friend to whom they can air their concerns.

What will the child be asked to testify about?

A common fear that parents have is to put their child in a difficult position in the divorce. They don’t want to force their children to choose between the parents or say something to violate their trust.

This is not what the courts are after when they set up an interview with your children, in most cases. The obvious exception is when there’s an allegation of abuse or if the case involves a crime punishable by law.

Instead, the interviews will only be an avenue for the child to air out their grievances. It’s how the children’s concerns will come to light, which will be produced in a report and become evidential in helping the judge decide on the divorce and custody matters.

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Heidi
Whitaker

Senior Associate

Fort Collins

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