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Child as Divorce Trial Witness

Child as Divorce Trial Witness

Should a parent bring a child to the court house?

There are two primary lines of thought.

The first group of people does not believe children benefit in any way from seeing the inside of a court house.  They believe a therapeutic setting is the best way to assist a child in sorting through the problems their parent’s dispute creates in their lives. These folks routinely request custody evaluations and call the evaluator to testify as to the evaluator’s findings regarding the child. The obvious problem with this strategy is the cost of the expert.  Moreover, not all experts are created equally and in cases were an expert does not or cannot give the case the attention it deserves, bad decisions can occur.

The second group of people does not believe that all children are harmed by testifying, but most of these persons agree that at least some children may suffer as a result of testifying. Obviously, it is much cheaper and faster to just call the child to the stand rather than bother with an evaluator.   However, this group of persons often overlooks the initial question; who should decide that the testimony is good for that particular child? Should it be the attorney him/herself (whom may have all good intentions) but still represents the interests of one litigant?  Should it be a judge who knows nothing about the child but what he/she is told by the warring litigants?   Should it be the child him/herself whom may lack the capacity to foresee the fall out in personal relationships that shall occur following the court appearance?

I have found that judges whom have a criminal background are more likely to allow children to testify. Judges with family law and juvenile backgrounds are more likely to be disturbed by a party calling the child.  I believe this is true because in criminal cases the offender may very well go free to harm others if a child witness is not called to the stand.  Moreover the criminal defendant’s rights under the constitution require that he or she be allowed to face his/her accuser.  Those rights do not apply in family law cases and I find that judges from the family law and juvenile bar are more concerned about the future ramifications of their decision to allow the child’s testimony. Unfortunately, we mere mortals are not smart enough to know which opinion is truly best.  I think most of us know, however, which is the safer course of action.

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