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Testimony of Your Child
Q. I've heard my daughter can tell a judge where she's going to live when she becomes 12 years old. Is that right?
A. Not quite. Nobody can tell the judge in a custody or visitation case what to do, not you, not your lawyer, and certainly not your child. Not even at 17 years old, just six months from the age of majority in this state, can your child tell the judge what arrangements may be made for custody or visitation. The judge decides these issues based on the best interest of the child, whether or not the child agrees with the decision.
Q. Well then, can my daughter ever tell the judge where she wants to live and with whom?
A. Of course. Children often testify during custody and visitation trials. The cases in North Carolina state that it is very important for the judge in such a hearing to listen closely to the wishes of the child of the plaintiff and defendant (the parties to the lawsuit). But the cases also emphasize that the judge should only give strong weight to the preference of a child of suitable age, discretion and maturity. That means, basically, that if your child is really old enough and grown-up enough (and these are two different things!) to know with whom she wants to live, along with some good reasons for the decision, then the judge should be willing to listen to her explain her preferences. Also, you should understand that the younger the child is the less the judge will likely consider her testimony.
Q. Are there any age limits for testimony? How young can a child be? Can I also have my three-year-old son testify that he hates his father and wants to stay living with me?
A. Not so fast! There are limits to everything. The youngest age of a child that testified in a court case that we've been able to uncover is six years old. It would be pretty hard for a judge to give "considerable weight" to the testimony of a child who is younger than six (and, in many cases, to children who are between six and nine but are simply not mature enough). The older a child is, the more weight will be given to her testimony. At age 16, for example, a child's testimony, if straightforward, believable and honest (not subject to bribes or promises of rewards) would be very helpful to the judge and would probably be followed most of the time if the rest of the case also supports the child's preference. Also, you should understand that the younger the child is the less the judge will likely consider his/her testimony.
Q. Well, then, can the judge disregard my child's wishes entirely?
A. Yes, indeed. There's no rule of law that says the judge must follow the child's preferences. In a 1966 case, the North Carolina Supreme Court stated that a child's wishes are not controlling in a custody dispute but must yield to the standard of the best interest of the child. And in a 1993 case, the Court of Appeals upheld a trial judge in Wake County who ordered visitation rights for a father over the strong objections of the teenage daughter, stating that visitation in such cases is "the fathers' right," which cannot be undone by the wishes of the child.
Q. Does my son testify in the judge's office or on the witness stand?
A. Unless the parties agree otherwise, the child testifies in open court like any other witness. If your lawyer cannot get the other attorney to agree to the son's meeting with the judge "in chambers" (i.e., the judge's office), your attorney may at least make a motion to clear the courtroom, as would be the case in a juvenile court hearing, but whether this motion is granted depends on the judge. There is no doubt, of course, that testimony in chamber is the most comfortable way of presenting testimony, not only for the son but also for the judge, and most judges will do a little "jawboning" of their own if it looks like the child is going to testify to see if the attorneys will agree to the "in chambers" approach to this important testimony.
Q. Suppose we agree to let my son in chambers and so does the other side. Is it just Johnny and the judge in there? How will I know what he says? What if he goes off the deep end and starts saying untrue things about me?
A. The judge can hear the child in chambers without the parties present, assuming that they consent to be absent. The judge can also exclude the attorneys if the parties consent. But the judge is not allowed to speak alone with the child with no record at all of what was said. A custody or visitation trial, after all, is supposed to on the record, meaning that everything is taken down and recorded (either by court reporter or by tape recorder). Without any record of the conversation, there is no end to the mischief that could occur based on the child's comments, well-intentioned or otherwise. So the judge will usually make arrangements for one of the above two methods of memorializing the meeting in chambers with the child when the parties and the attorneys are not present.
Q. Should I be at all concerned about how testifying could affect my child?
A. Absolutely! Remember that your child has a relationship with you and the other parent. It is, often, very difficult for children to "take sides" with one parent over another. Indeed, while a child may say to Dad "I want to live with you, he/she may also be saying that same thing to Mom. When a child testifies, he/she usually feels as though he/she is betraying one of her parents. If you have any question in your mind as to how or if this will adversely affect your child, we suggest taking your child to a psychologist who can make a recommendation for you.
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No-fault grounds for divorce in North Carolina are living separate and apart for one year or living separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of them.
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