Any parent seeking custody of his or her child knows that these matters can be very difficult for their child. Courts try to limit the involvement of a child in the custody case itself, but oftentimes the child has information that is necessary for the case. A question that may arise for a concerned parent is: will my child have to testify in my custody case? The answer to this question, like most questions in family law cases, is neither black nor white. The Illinois Marriage and Dissolution of Marriage Act is the law that governs child custody cases. Pursuant to this law, a court may require a child to testify in court. However, Courts understand that testifying can be a frightening experience for most adults, let alone a child. Courts also understand that custody issues are very sensitive for the parties, their families, and most of all, their children. As a result, there are laws in place that allows the Court to obtain necessary information from the child without subjecting the child to testifying in open court.
In lieu of having a child testify in court, the Illinois Marriage and Dissolution of Marriage Act provides that the Judge may interview the child outside of the courtroom. However, this interview must be conducted in a certain way. First, the Judge must interview the child, not the parties or their attorneys. Second, the Judge must interview the child in his or her office. Also, the attorneys for both parties must be present during the interview to make sure the interview is being conducted fairly. Finally, a court reporter must be present and record the entire interview. The interview is recorded so that the parties may use it at the custody trial and so the Court can refer to the child’s testimony when making a decision.
After examining the Illinois Marriage and Dissolution of Marriage Act, perhaps we should rephrase our initial question: Can your child be required to testify in your custody case? The answer to this question is yes. Will your child be required to testify in your custody case? The answer to this question is likely no. Rather, the Court will likely interview the child in his or her office to avoid the stress that can result from having the child testify in court.