Next Week is the Custody Trial & Your Kid is Testifying
Unfortunately, you and the ex aren’t seeing eye-to-eye on custody matters and it is now going to court. You say he’s done some bad parenting, and he says you are even worse. One or both of you has listed your child(ren) to testify in court. And now, that seems like it’s going to happen.
You both have reason to feel anxious. You each think you know what the kid is going to say but saying it in the family room is leagues away from saying it before strangers in a building with 15 foot ceilings and people dressed in robes.
How kids treat this varies widely by age. Most kids under age 9 are both adorable and unreliable. One minute the child seems to be confirming that dad left him alone while he went to a bar with friends. The next minute the kid says dad was eaten by a tiger. This is also the place where a parent’s efforts to influence kid testimony gets exposed. “So, Conner, how do you know he went to a bar?” Not many parents tell their kids more than “I need to go out and I’ll be right back.” I recall a case where the kid says his mother drinks too much vodka. Judge asks “What color is vodka?” “I dunno.” Yes, this stuff happens. Father left his 4-month-old daughter alone in front seat of running car so he could wait in line at downtown bar: police
From 9-14 kids are another form of wild card. They know something big is going down and they often have their own agenda. These are prime parent alienation years where a child may decide that one parent is “all right” and the other is “all wrong.” This is often unmasked through questions like “Tell us three things you like and don’t like about each of your parents.” One parent can do no right. The other can do no wrong. One parent is unworthy of regular contact, but can’t really specify why. Kids this age also grasp the Joe Friday Rule. Anything they say can and will be used against them once they leave the marble crusted courthouse. So, some kids follow the Geneva Convention. All you get is name, rank, serial number and anodyne descriptions of how much they like school and sports and Black Sabbath. They know that a parent drinks to excess and passes out. But, what’s in it for them to reveal that? They also know how to play the room. They will impress the judge with their knowledge of rock bands or NFL statistics. They will be polite and earnest. But they’re hazy on the time dad punched their uncle or mom fell in the pool with a beer bottle in hand.
After 14, kid witnesses tend to be annoyed. They’re sick of the fighting and they have little confidence courts can fix it. Judge asks what can be done. “Make them stop fighting over everything.” These kids are often brutally honest about the failings of both parents. They have a decade of experience with substance abuse, anger, unemployment and warfare over which parent is better or worse. Many have seen lots of court but the war never ends.
One of the common disputes that arises is over who transports the child to court. The parent not in custody that day frets (with reason) that the custodial parent will pressure the child while in transit. In a day when we all seem to be familiar and comfortable with electronic meetings on Zoom, Teams or Webex, this may be a better alternative. The concern here is “Who is in the room?” when the child speaks with the judge. Bringing kids to courthouses with all their pomp and circumstance really doesn’t wear well on children nor does sitting in a room filled with strange lawyers, a judge and a court reporter.
The other conflict is just how much of the child interview is disclosed. Many judges pressure lawyers to interview the child alone with the court reporter. The law is clear that lawyers are entitled to be present for that part of the proceeding although clients can waive that right. Kids age 9 and up are not lost on the fact that mom and dad are in an adjacent room and that their lawyers may reveal what they tell the court. It is unusual but not unheard of for judges to make a child take the stand in court with the parents present. That typically occurs when a judge senses that the child is playing games and manipulating his/her parents.
A fine video offering insights in this area is found here:
Update: No sooner published than I was “fed” the dispute between actress Halle Berry and her ex-husband over their 13 year old daughter. Dad wants the kid to testify but wants to exclude any testimony from Berry’s 18 year old daughter (by Gabriel Aubry) because the custody dispute is none of the older child’s concern. That motion is likely a loser as the older kid has seen a lot of parenting by both parties. As for the contention that the older kid is prejudiced toward her mom, most judges will reply: “I hear your point but let me judge the degree of prejudice based on what she says on the stand.”