As Chicago family law attorneys, we are often asked should a child testify in family court. Parents often know that their children see and hear what happens in a family home, or in their parent’s individual homes and that the children often have access to information that would corroborate the parent’s position. Many parents who are new to family law in the legal system may believe that this benefits their case in some way and will try to utilize their child’s knowledge and witness statements to their advantage. Sometimes it is by recording them, sometimes it is by pushing for the minor child’s voice to be heard. However, parents learn very quickly that the Judges will do everything in their power to try and make sure children are as uninvolved in the legal dispute between their parents as they possibly can be. There are certain exceptions that are made, but they are very limited.
For the most part, the Court does not want the minor children involved in divorce or family law disputes and rarely if ever wants the children to be forced to testify in family court.
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Child Testimony in Family Court
When it comes to the wellbeing of minor children having a child provide their testimony is important. Most of the time, if there are allegations of abuse, neglect, or anything that pertains to a child’s wellbeing, the Court will opt to appoint a Guardian Ad Litem. A guardian ad litem is an attorney who acts as the court’s “eyes and ears”. They are the Court’s witness at a trial on parenting time issues or anything relative to the minor children. They are able to testify as to what the minor children reported to them. So, oftentimes, they will interview the minor children, and they may even interview collateral witnesses such as teachers, doctors, therapists, coaches, family friends, and extended family members, to try and gain insight into whatever is being alleged and assess credibility. This person then can testify as to what they observed or witnessed, or what was reported to them. This is the most common way the Court will hear from minor children in a family law case. This is because the minor children are not forced to come to court or testify against a parent. Being in Court is a scary experience, and there is no value in putting a child in a position to testify unless it is absolutely necessary. So, a Guardian Ad Litem, a lot of times, can help avoid this.
Child Testimony By “In Camera Review”
In some situations, the Court may want to hear from the minor children directly. If they think there is a credibility issue, they may want to hear from the children directly. However, most of the time, they won’t let the children testify in a courtroom. They will conduct what is called an “in camera interview” instead. All of the attorneys have a right to be present unless they agree to waive it, but at a minimum, the child’s Guardian Ad Litem or Child Representative will be present with the Judge and a court reporter. The court reporter will take down the testimony. However, the Court can opt to seal it from the parties and their attorneys so that no one can see what the child said, in certain circumstances. The Court can then assess the credibility of the child(ren) on their own, without them being in the courtroom and testifying for their parents to hear. This is the preferred method of eliciting testimony from a minor child.
In very limited circumstances, a minor child might be called to testify as a witness. This is reserved for only the most dire circumstances, as a last resort, and usually the allegations are incredibly serious. Or, the minor child might be significantly older (i.e. a teenager), where their level of maturity is different than that of a younger child.
Age a Minor Child Can Testify in Illinois Family Court
The general rule in Illinois is that when a minor child attains the age of thirteen (13) they are old enough and mature enough to articulate their preferences for parenting time, allocation of parental responsibilities and extra-curricular activities. However, their reasoning has to be sound. They can’t say they want to live with dad because he is never home and it is the party house. The Court likely would not agree with the child’s preference is that is the reason why. But, it is generally accepted that around age 13, minor children can maturely formulate their opinions. This does not mean they will be called to testify, though. Usually, they are just as effectively able to promulgate their opinions through a Guardian Ad Litem as they would have had they testified. Children will only testify in very limited circumstances. Some Judges get angry just at the suggestion that a child is “willing” or “can” testify. The suggestion of a child speaking to the Court whether in an in-camera interview or through testimony must be handled very delicately and parents need to be cautious about when they ask for this relief.
