Can the Children Testify in Court in a Custody Case?

child-custody-22934495Often divorcing parents want to know if their children can or will need to testify in court during custody proceedings. Frequently, testimony from the child can be helpful in determining the  child’s preference for living arrangements and the veracity of allegations of abuse.

 Illinois custody laws provide that, when the court finds that it is appropriate, children may be called to testify either in open court, meaning in front of the parents and their counsel, or  “in camera, ” meaning in the judge’s  chambers, with the parents’ counsel present, but not the parents.

It is rare that a child, in a custody proceeding, testifies in open court. If the judge would like to directly speak with a child, he or she is likely to meet with the child in chambers, or “in camera”, where, according to the statute, a court reporter must be present. The lawyers for the parents have the right to be present but can waive their right to be there.

 “In camera” interviews are not granted without compelling reason and usually only done in exceptional circumstances. The court must be convinced that the benefit of the interview will outweigh the harm of subjecting the child to such an event. The court will consider the maturity of the child and whether there are other means to ascertain evidence. In many cases, for instance, the court will first appoint a lawyer for the child, either a “guardian ad litem” or” child representative.” This professional will talk with the child and advocate on behalf of the child and report findings and opinions to the court without the child ever needing to appear in court.   

 

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