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Home Sweet Home?  

Can My Child Choose Where to Live?

By Amy Edwards

Parents of teens or pre-teens often ask if their kids can “tell the judge” where he or she wants to live, and with which parent.  Like many things in family law, there is simple yes or no answer.  Judges ultimately decide what they will or will not allow when it involves a witness who is a minor.  If a child is allowed to testify or meet with the judge privately, he or she can express an opinion.  Just as it is with testimony from parents, however, the judge can do whatever is deemed to be in the child’s best interest regardless of anyone’s testimony.  No one can dictate to the court what the ruling will be.

What Age Are Kids Allowed to Testify?

Technically, there is not a specific age a child is allowed to testify. The closer a child is to the age of 18, the more weight a judge gives to the child’s desires. Judges usually give testimony by a minor who is old enough to drive and/or work part-time more weight than that of pre-teens. The issue is complicated when younger children want to testify. The law asks whether the child is of suitable age, maturity and discretion.  One case* quotes a legal digest as follows:

The nearer the child approaches the age of 14, the greater is the weight which should be given to the child’s custodial preference.  As to when the child is mature and intelligent enough to formulate a rational judgment concerning its welfare . . .  no specific age is set by law . . . but the question depends on the mental capacity, or the mental development, or the intelligence of each child in question.

Children’s Testimony: Playing With Fire

A child who is allowed to testify must do so on the witness stand in open court, although parents can consent the child may talk to the judge in chambers, which is the judge’s office. Judges who take testimony from a minor are on the lookout for indications the child was coached, rewarded for testimony or was otherwise manipulated. Demanding your child testify can backfire, especially if he or she is cross-examined. A child might not testify truthfully, or might embellish the story. Children may simply be incorrect in telling the judge about events, especially when they have butterflies in their stomachs. Parents can agree whether the attorneys are allowed to be present when the judge talk with the child in chambers. Judges may choose whether to share the child’s communication with the parents and/or the attorneys. In fact, I’ve been in several cases where the judge told the child he or she would not share what they talked about in chambers with anyone. That can make it difficult to explain or “correct” the child’s comments in your closing argument.

The Ethics of Calling Your Child as a Witness

Parents should carefully consider the consequences of a decision to have a child testify.  If an adult is nervous or stressed about testifying in court, imagine how much more stressful it probably is for the child. The fallout from this event inevitably includes tension or even fear about the reactions of both parents when he or she goes home, especially if the parents inadvertently grill them about what they said in chambers or when they testified. Kids may have to become politicians after the trial in an effort to mitigate the damage they feel they’ve caused. If there are siblings, add another layer to the interaction at home, especially if the sibling shares a different opinion.

Although the parents decide they no longer love each other, a child does not have that luxury. The child loves both parents even if the bond may be closer with one parent. Many kids already feel some guilt about the breakup between the parents. Their burden is probably increased because they could very easily assume responsibility for the judge’s ruling.  Do you want your child to be “interviewed” by the other attorney in preparation for the trial? The other attorney in a custody case I litigated tried to absolutely demolish a 15-year-old boy in cross-examination, causing him to breakdown in the presence of the whole courtroom full of relatives.  The attorney was viscous and the court was reluctant to stop it.  About ten years later, I still wonder about the impact that has had on him.  I suspect he will always remember that day for the rest of his life, as I know I will.

Mintz v. Mintz, 64 N.C. App. 338 (1983).

Amy A. Edwards is a family law attorney in Greenville, NC.  She is certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change.  This article is current as of August 2015. www.AmyEdwardsFamilyLaw.com  © 2015.

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