A huge dilemma that both family law attorneys and parents face in custody cases is whether a child should testify in custody proceedings. Some parents long to protect their child from the court process regardless of the circumstances, while others want their child's voice to be heard - particularly if the child is compelled to tell their story.
What the Law Says
In New Jersey, judges are granted a great deal of discretion when deciding whether a child's testimony is allowed. Testimony from children isn't conducted at a podium in a courtroom like the movies suggest. It is given through an on-camera interview.
Statutory laws (N.J.S.A. 5:8-6) specifically address children's testimony. It states the following:
“As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in-camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any question thus submitted.”
Simply put, the law says that a child could possibly be called to testify. But whether or not this happens will be determined based on the “best interests” of the child. A judge will take into account the child's maturity, intelligence, and ability to reason before putting him or her in a situation to testify.
Applying the Law
So, when is a child of reasonable intelligence and maturity to actually testify? New Jersey law doesn't have a specific criteria in regard to age. There is no “magic number” that judges can use to determine if a child's testimony is credible. Of course, the older the child is, the greater the possibility that a judge will allow the child to express a preference, but maturity and intelligence don't always come with age.
In my experience as a family law attorney, I've observed that judges prefer to keep children out of court proceedings. It is only when children beg to testify that a judge may be open to allowing it. For children like this, it may be even more traumatic to be barred from testifying, as they may feel disregarded and voiceless. Not to mention, that there are situations where it is completely necessary to call a child witness. If two parties have two separate accounts of events, sometimes the child is the only witness who can set the record straight.
New Jersey Family Law Attorney
Overall, the decision to call a child to testify is a major one that should not be taken lightly. Child testimony has been known to make or break child custody cases. If you're on the fence about what your child should do, contact the Lento Law Firm today at 888-535-3686 for legal counsel.