A close-up photo of a young girl testifying in court. She gestures as if unsure … [+]
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At What Age Can Children In a Disputed Custody Case Attest Custody Preference?
Difference in age between states:
In Maryland, the court must consider a child’s preference if the child is old and mature enough to make a reasonable decision. It is common for children to wish their parents were reunited, which can often result in a child expressing an unrealistic preference. Children as young as five have testified.
Although California law specifically allows children as young as 14 to express an opinion, there is no specific age at which a judge will hear a child’s opinion. California law also permits a child under the age of 14 to testify regarding a custody preference unless the court determines that doing so is not in the child’s best interests.
in Arkansas, there is no specific age when a child can decide with whom it wants to live. The court has the last word up to the age of 18. In most cases, the circumstances of the situation are just as important or more important than the child’s age.
In Florida, Florida’s Family Law Rules were amended to provide that a child may not testify unless the court first determines that a child’s testimony is necessary and relevant to the matter, Florida Family Law Rule 12.407.
In New York, where I practice law, the court may hear the child’s preferences in a closed hearing where only the court clerk and the child’s attorney are present. For children under the age of 14, the court need not consider the child’s written will in making its final custody determination. Once the child is 14 years old, the court must consider the child’s will and take it into account in its decision, even if the court decides differently than the child wishes.
Should children testify in a custody battle?
Most courts and parents do not want the children involved in their custody disputes. It puts the children in the middle of their parents, who presumably love them and often do not want to decide with whom they live. You also don’t want to choose one parent over the other.
Keep children out of conflict
Bitter custody battles can cost parents nerves, wallets, and time. Additionally, research shows that parental conflict often takes a heavy emotional toll on children caught in the middle, leading to increased dropout rates, behavioral problems, and mental health issues.
In recent years, higher quality research that has enabled the “meta-analysis” of previously published research has shown that the negative effects of divorce on children have been greatly exaggerated. Researchers now see conflict, rather than divorce or housing plan, as the most important determinant of children’s adjustment after divorce.
It is therefore the conflict between the parents who live with the children on a day-to-day basis that causes the emotional distress – not the actual divorce or separation of the parents. According to this analysis, a child’s testimony in court is drawn directly into the conflict of what parents should most protect their children from and stay out of.
According to research by Dr. Mathis, the children who thrive after a divorce have parents who can communicate effectively and work together as parents. In the past we have read of children of divorce suffering from depression, failing at school and getting into trouble with the law. Children with depression and conduct disorders showed evidence of these problems before divorce because of pre-divorce parental conflicts.
When do children have to testify in court?
Under the Florida Family Law Rules, a judge must determine that the child’s testimony is necessary and relevant. It is this question that requires careful evaluation:
A child’s testimony in court is relevant and necessary when domestic violence occurs at home. It is important for the court to hear how domestic violence between parents affects the child. It is difficult to obtain accurate testimony from a child witness and the child must be protected before being asked to testify in court. If the child testifies, they cannot be sent back home with the perpetrator.
Breaking the cycle of domestic violence is difficult. Victims are attacked by those closest to them. Taking a family member away from the domestic abuser is a great victory. Children should be taught that domestic violence is not okay, or we will just see the next generation of abusers and victims. Unfortunately, you testified.
Children must testify if they are abused by one of their parents in a separate family household. They are the only witnesses to what is happening to them. Often the alleged perpetrator will deny that any of this ever happened, claiming that the other parent was estranged from the parent, or that they were coaching the child, or that both the accusing parent and the child are lying. If the child cannot testify for himself, he is left to the continued abuse of the abusive parent.
Children should also testify if a parent uses drugs, has an untreated mental illness, has attempted suicide in the presence of a child, or is inadequately resourced for parents and neglects to have food in the refrigerator or to get up to fetch the child from school .
Guidelines for child testimony in an abuse case:
Attorney Toby Kleinman and social work professor Daniel Pollack, in a February 2020 article in the New York Law Journal, lay out some considerations to consider before asking a court for a child’s testimony:
1. Keeping the child out of the middle of the litigation is balanced with the fact that the child is being abused by a parent. Is the child’s testimony helpful to the parent trying to protect the child’s case?
2. There is controversy over allowing an expert to testify as to whether the abuse took place, particularly where the expert concludes that there was no abuse. Some experts accuse children of lying at the behest of a parent or encourage parental defenses against alienation.
3. The court’s consideration of the child’s testimony must take into account the fact that the child’s testimony may be robotic at the time the court hears it, since the child has already given it many times.
4. The child is their own best witness when it comes to proving their best interests. There is nothing more exciting than listening to a child of the right age tell their story.
The decision to have a child testify as a witness should not be taken lightly, and it is best to avoid doing so when the evidence can be presented to a court in other ways.
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