Can My Child Testify in My Custody Case?
In both Maryland and the District of Columbia, the Court looks at several factors to determine a custody arrangement in the best interests of the child. In both jurisdictions, the child’s preference is a factor, which is most relevant when the child is old enough and mature enough to state a thoughtful preference. There is no specific age at which a judge will consider a child’s preference; it is handled on a case-by-case basis.
Does this mean children testify in custody cases?
The short answer is generally, no, a child will not take the witness stand during a custody trial. Judges, practitioners, and experts generally agree that bringing the child into the middle of the conflict between the parties can emotionally impact the child. Further, children are susceptible to coaching and undue influence.
What are other ways to show a child’s preference in a custody case?
There are other ways to introduce evidence of the child’s preference:
In camera interview: a judge may, in his or her discretion, decide to interview the child in private, upon either party’s request or the request of an attorney who has been appointed for the child. The interview will usually occur once, at the time of the trial, and can be recorded. If it is not recorded, the judge will place a summary on the record. The interview is therefore not confidential.
Custody Evaluation: an expert professional may conduct an investigation which can include interviewing the child, interviewing both parties, observing the child with each party, speaking with collateral witnesses, and reviewing documents such as medical/school records and party communications. After the investigation, the evaluator may submit a report to the court and may testify at the custody trial regarding his or her recommendation.
Child Advocate Attorney: A child advocate attorney advocates for the child’s wishes. A child advocate attorney treats the child in the same way they would treat an adult client, which means they must follow the client’s instructions. This form of representation is only appropriate for older children who are deemed to have considered judgment.
Best Interest Attorney/Guardian Ad Litem: A Best Interest Attorney (Maryland) or Guardian Ad Litem (D.C.) represents the child’s best interests. They are required to tell the court if the child has stated a preference, but ultimately can make recommendations in the child’s best interests which may be different than the child’s wishes.
Child Privilege Attorney: A child privilege attorney (“CPA”) has the limited function of determining whether a child’s confidential or privileged communications with his or her mental health professional should be waived. There exists a strong preference for preserving confidentiality. However, if privilege is waived, the privileged information may be made available to the court through records or permitting a mental health professional to testify. A child’s parent cannot waive the child’s privilege on the child’s behalf.
If you have any questions about introducing your child’s preference in a custody case, please contact Markham Law Firm at 240-396-4373 to setup a consultation.