Can My Child Testify in Custody Proceedings?

http://www.dreamstime.com/-image1800599The real question should be: do you want your child to testify in the custody proceedings?  Generally, any testimony by children as to who they prefer to live with is not allowed in domestic relations court.

The Illinois Marriage and Dissolution of Marriage Act has a provision for interviews with children, specifically 750 ILCS 5/604.

604(a) refers to in camera meeting between the child and the judge, it states:

“The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation.  Counsel shall be present at the interview unless otherwise agreed upon by the parties.  The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.”

The second provision of 750 ILCS 5/604, 604(b), allows for the appointment of a custody evaluator.  It states as follows:

“The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis.  The advice given shall be in writing and made available by the court to counsel.  Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court’s witness.  Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both.  The court shall allocate the costs and fees of those professional personnel between the parties based upon the financial ability of each party and any other criteria the court considers appropriate.  Upon the request of any party or upon the court’s own motion, the court may conduct a hearing as to the reasonableness of those fees and costs.”

The appointment of a 604(b) evaluator is much more common than the court interviewing a child in chambers.  It can be highly detrimental to force a child to choose between parents, and at all times the court attempts to look out for the child’s best interests.

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