The question of whether your child can testify in a divorce proceeding depends on several factors. Among the most important variables a judge will consider when deciding whether to allow a child to testify is their age and maturity. Basically, judges must ensure that witnesses are competent to testify, much like when a defendant is ruled competent to stand trial.
If a child is found to be competent and able to testify, the next consideration a court may take into account is the purpose for calling the child as a witness. Courts are generally reluctant to put a child in the position of providing testimony in a divorce for the purposes of division of property, but will do so regularly to help decide custody matters (if the child is old and mature enough).
Is Your Child Competent to Testify?
Generally, there is no age limit for a witness. A three-year-old girl may actually hold the informal title as the youngest witness in US history, though her testimony may have led to a mistrial. Courts determine whether a witness can testify reliably based upon a witness's competence.
In short, any person who can communicate clearly, and understand and appreciate the difference between the truth and a lie, can usually be called as a witness. However, there are bound to be issues when very young children are called to testify. Before a child reaches 12 years old, or thereabouts, the questioning will be handled rather carefully so as to avoid influencing the testimony and causing a mistrial, or other courtroom errors.
Because mostly all states are "no fault" divorce states, no testimony or evidence needs to be presented regarding the breakdown of the relationship. This usually means young children will not be needed to testify during a divorce. But if there are harassment problems, or child custody, or child support or alimony matters in the court, your child may be able to provide helpful factual evidence. In states that allow for fault based divorces, a child's testimony may be helpful, but asking your child to testify in those matters should be carefully weighed.
Can My Child Tell the Court With Which Parent They Prefer to Live?
While parents may not like this so much, when kids reach their preteen years, courts will generally start listening to their preference for where they want to live. Often, children will be questioned by the judge, rather than the attorneys or parents, so as to avoid undue influence, or inappropriate questioning.
Also, judges are usually skilled at detecting children trying to escape the stricter parent, and regardless of the child's stated preference, the judge is going to rule based on what they believe is in the best interest of the child. However, more mature children will have their stated preference be a more important factor in a judge's custody determination.
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