Calling a Child as a Witness in Your Divorce

Litigation is always stressful for the parties involved.  This is even more true with family law cases, as the subject matter of the case clearly cuts to the very heart of some highly personal issues, such as how you raise your children and your financial stability.  Although most divorces settle before reaching a final hearing, you may find that you are unable to reach an agreement and must proceed to trial.  During a trial, you will have to present evidence, such as witness testimony, to support your case.  One of the more difficult decisions when preparing for your final hearing is whether you should call your child as a witness in your divorce.

Age and Maturity

When talking with your family law attorney about whether you should call your child as a witness during your divorce, you need to think carefully about your child’s age and maturity level.  For example, a teenager is more likely to be able to provide accurate testimony than a small child.  The younger the child, the more likely it is that he or she will not be able to give accurate or complete testimony.  Moreover, a very young child is more likely to be frightened or even traumatized by the process.

Custody

In most situations when a divorce litigant wants to call a child to testify, it is so the child can express a preference concerning custody and visitation.  The best interest factors under New Jersey statute allows a judge to consider a child’s preference, but a judge is not required to do so.  A judge may outright refuse to hear a child’s testimony about his or her living preference if the judge does not believe the child has sufficient reasoning powers and maturity to provide a decision.  The older the child, the more likely a judge will be to hear the child’s testimony.

Abuse or Violence

Domestic violence is, unfortunately, a reality for all too many families.  If your child has personally witnessed domestic violence or even been a direct victim, a child’s testimony may be important in your divorce.  That said, forcing a child to testify against his or her abuser can be a traumatic experience, and you need to weigh the potential for re-traumatizing your child against how crucial his or her testimony is to your case.

Typical Parenting and Household Responsibilities

A judge will likely give a lot of consideration to which parent has traditionally been the primary caregiver for the child when making an order about custody and parenting time.  Your child will clearly have first-hand experience as to which parent is usually doing the most parenting. However, forcing your child to testify that you have always been around and your spouse is always working or otherwise out of the home is likely to be stressful or even detrimental to your child.  You should discuss the possibility with your divorce attorney, but typically it is better for the child and better for your family if your child is not forced to testify about the mundane details of your household.

Adultery

Infidelity is a common reason for the break down of a marriage.  In some cases, the adulterous spouse may have already introduced the new paramour to the children.  Although it is tempting to call your child to testify about the fact your spouse is cheating, you need to understand that adultery is not likely to have an enormous impact on the outcome of your case.  In many cases, the damage to the child caused by forcing him or her to testify is much worse than going to court without substantial evidence of adultery.

Judge’s Preference

An experienced divorce lawyer will know whether your local judges are favorable to hearing child testimony.  Some judges disfavor child testimony because of the high likelihood that a child will be scared or traumatized by the experience, especially if the child is young.  If your divorce judge typically disfavors child testimony, calling your child to testify can have a detrimental effect on your case.

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If you have questions about custody and evidence you should use at your trial, contact us today at (908) 738-8512.  We have extensive experience helping our clients navigate every stage of family law cases.

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