Will my Child Have to Testify in Court?

As a child, I was scared of a few things.

First among those things was open bodies of water. Yep, if the water wasn’t enclosed and I couldn’t see the bottom, there was no chance on the green earth I was dipping in my toe.

My fear stemmed from the completely irrational idea that a sea monster (think Jaws) would eat me. I know now, as I knew then, that the actual chance of being eaten by a sea monster is essentially zero. But that didn’t matter; I was scared just the same.

Even noting my irrational fear of water, I’m fairly certain that if my parents had divorced when I was a child (they’re still married after 50+ years) and I had been asked to testify in a custody trial, I would have much rather been thrown off a boat in the middle of the Pacific, there to meet Jaws, followed shortly thereafter by my Maker.

I’m not sure if any of us can properly understand the level of stress a child would go through testifying in court, with his parents sitting at opposite tables, being asked questions by his parents’ attorneys.

This is why children do not testify in court during divorce and child custody cases.

Utah has a law to this effect. It’s Utah Code Annotated, Section 30-3-10(1)(d)-(f):

(d) The children may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the children be heard and there is no other reasonable method to present their testimony.

(e) The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

(f) If interviews with the children are conducted by the court pursuant to Subsection (1)(e), they shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with the children is the only method to ascertain the child’s desires regarding custody.

Essentially (d) and (f) address testifying. (d) states that unless there is some extenuating circumstance, children will not testify in court.

In reality, extenuating circumstances requiring live testimony in court almost never exist. I have never seen it happen. Not once in any case we’ve ever worked on has a child testified, and I don’t know any friends who have ever had it happen either.

If the Court wishes to find out what your child thinks or what they have to say about certain allegations, it will usually appoint a guardian ad litem to conduct an investigation and report back to the Court.

If the Court doesn’t appoint a guardian ad litem, it will talk to your child “in camera,” which is a way of saying “in the judge’s chambers.”

So, to wrap up, kids almost never testify in court. Instead, a guardian ad litem is usually appointed to find out what’s going on and what your child’s preferences are. If that doesn’t happen, the judge will speak to your child in his chambers.

Published On: March 27th, 2017Categories: Contested DivorceComments Off on Will my Child Have to Testify in Court?
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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