When Is a Child Allowed to Testify in Court and When Is it Appropriate?

A divorce case that goes to court can be hard for every member of the family, especially the children. When is it appropriate for a child to testify in court? In Texas, though there is no specific age at which a child can testify. There are both legal and practical considerations to consider when determining whether it is appropriate to do so. The initial legal test is for the judge to determine is whether the child is “competent” to testify. This means essentially that the child must understand the difference between the truth and a lie, and must understand the moral responsibility of failing to tell the truth. According to Rule 601(a) of the Texas Rules of Evidence in regards to children being on the witness stand, children “who appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated,” are considered incompetent. Even if a child is competent to testify, children rarely testify at custody hearings. However, sometimes the child can speak privately to the judge. The Texas Family Code Sec. 153.009(a) requires a judge in a non-jury trial or hearing to interview in chambers a child 12 years of age or older to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. However, it is absolutely wrong to assume or tell a child that they get to decide where he or she will live once they turn 12 years old. Once your child turns 18 and is a legal adult, then a custody order does not apply and they can decide where to live. The closer your child gets to age 18, the more he or she has a say. It is generally up to the judge to decide whether or not to permit the attorneys to be present at the interview. If either party requests, the judge must have a court reporter in the judge’s office to record the interview with the child. The parents are not allowed in the judge’s office during the interview. The judge does not have to follow the child’s wishes. Although a judge might listen to a child’s wishes regarding custody he or she can decide not to do so because it is not in the child’s best interests to live primarily with that parent. Most judges will want to know why a child is selecting one parent over the other. Some kids want to live in the house with no rules and no chores. The Judge must determine, based on the age, knowledge, maturity, intelligence and reasoning abilities of the child what weight to give to the child’s preference. Aside from the legal authority to do so there are also practical considerations for the parent before deciding whether to have the child testify. The ramifications of this decision may very well have negative implications for the child. Careful consideration should be made before asking a child to choose between parents. Just because you can doesn’t mean you should.