Child Witnesses in Family Law Cases

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Posted in On July 16, 2017

“My kid can tell the judge…..” is a something all family law attorneys hear from clients. The reality is it is not a simple decision to involve children in a proceeding. Even though there are no laws against having children testify in a court proceeding, it is very uncommon and often discouraged by judges.
If a judge feels a child can contribute valuable information, the judge may choose to speak to the child(ren) privately. Before a child can be called to testify, it is important to make sure the child knows the difference between telling the truth and telling a lie. A child would also be sworn under oath just as an adult, which means the child must be competent to understand what they are being asked to do. If a child is asked to speak with the judges privately in his or her chambers, it is typically referred to as an “in-camera” interview. Despite the common misconception that the term means the meeting will be video recorded, it is actually a Latin translation for in chambers. These meetings in the judge’s chambers can be requested by either party to an action or set by the judge without request.

The court will listen to the thoughts of children but weighs the information along with the other facts of the case. Per Indiana Code, more weight is given to the thoughts and perspectives of the child if he/she is over the age of 14. It is important for a child to never feel like they are a decision maker in the process. If the court decides a case consistent with the thoughts of a child, he or she may get a sense of being in control and use that “power” against the parents later. Along the same lines, courts do not want a child to feel like their opinions do not matter or no one believed them simply because a court made an order contradictory to the wishes of the child.

The appointment of a Guardian Ad Litem (“GAL”) is something to consider in cases where the thoughts, wishes and perspective of children could make a difference in the outcome of a case. The GAL is trained to be an advocate for children and will write a report to the court after interaction with the child and other collateral sources. Often this avenue provides the court with more information than what would be given in a short meeting with a child.

If you or someone you know has questions about involving children in legal proceedings, Banks & Brower, LLC can assist. Give us a call at (317) 870-0019, or email us at