The simple answer is NEVER. Neither the parties nor the lawyers in a child custody dispute can divest or take away the Court’s authority to determine what is in the best interest of the child. However, a child may be a witness in a custody or visitation hearing. There is no age under North Carolina Law where a child has a right to testify. Even very young children can testify provided they can demonstrate to the Court that they know the difference between lying and telling the truth. If both parties agree, the Judges will typically take the child, with the attorneys, into chambers and speak with the child on an informal basis. If either party refuses to agree to this, then it will be necessary for the child to testify from the witness stand just like an adult.
Is it a good idea to involve the child in a custody dispute?
Most Judges do not like for children to be involved in these lawsuits. So it is very important to carefully consider whether or not you want to get the child involved. On the other hand, the child can sometimes be your strongest witness. This is a decision that will need to be made in consultation with your attorney. The child’s desires regarding custody or visitation may be considered by the Judge, but those desires will not be the determining factor in the Judge’s decision.
Parents should consider whether involving the child in court proceedings is absolutely necessary. If not, leave the child at home. If the child is the only person that can testify about an issue that is crucial to the custody determination (such as child abuse or neglect), involving the child may be necessary. However, parents should discuss with their attorneys whether there are other types of evidence that can be used for the same point, such as the testimony of counselors or medical professionals.
Alternatives to child testimony.
Other valuable resources include Guardians Ad Litem and Parenting Coordinators. A Guardian Ad Litem (or “GAL”) may be appointed by the Court to represent and protect the interests of the children. The testimony of the GAL may eliminate the need to have the child testify. A Parenting Coordinator is similar to a GAL in that both seek to serve the best interest of the children. A Parenting Coordinator is appointed by the Court to assist the parents in co-parenting and to serve the best interest of the children. However, the Parenting Coordinator also has certain powers to decide custody issues like a judge would. A Parenting Coordinator can be a valuable and cost-effective way to deal with custody issues while avoiding the greater expense, stress, delay and animosity that often accompany court proceedings.
Involving a child in a custody dispute is always a risky proposition. In most instances, the child loves both parents and is already experiencing confusion, fear, guilt and sadness about the separation of the parents. Putting the child in the middle of the court proceedings will likely increase those negative feelings. In short, the child cannot win. The child will perceive his or her involvement in the case to have been pivotal in the judge’s decision (even though that may be wrong). The parents should consider the best interest of the child before bringing the child to court. It is the policy of Irvine Law Firm to avoid involving young children in the court proceedings unless absolutely necessary.