Child Testifying in a Custody Trial
A common question that a parent may have when facing a family law case in Reno is whether their child can testify in their custody trial. The children of a custody case have the ability to provide valuable information and opinions on the issue at hand. While it is possible for a child to testify in a custody case, judges tend to limit a child’s involvement in a trial. If a parent wishes to have their child testify, there are several steps that they must follow in order to do so.
Requirements for a Child Witness
In order for a child to testify in a custody case, the child must be “competent”, meaning that:
- The child must understand the difference between the truth and a lie.
- The child must promise to tell the truth.
While any competent child could be considered to testify, the younger the child the less likely the court will order for testimony. Children under the age of 12 are rarely interviewed.
Informing the Court
A party wishing to have their child testify in a custody case must identify and disclose the child witness that they wish to use. They may do so by either:
- Notifying the court at the time of the case management conference.
- Filing a notice of child witness.
A custody attorney can assist a parent in informing the court of their wish to have their child testify in the custody case.
Notice of Child Witness
A notice of child witness must be filed no later than 60 days prior to the hearing that the child is wished to be called as a witness. The notice must contain an explanation as to why the child is a witness would help the party and the scope of the child as a witness in the trial.
Testifying by Alternative Methods
A child can testify in a custody case by alternative methods. There are different alternative methods that the child can testify by, depending on each party’s circumstances.
- If all parties are represented by family law attorneys, the court can allow the child to testify by:
- Interviewing the child outside of the presence of the parties, with the parties’ attorneys present.
- Interviewing the child without the presence of the parties and with the parties’ attorney simultaneously viewing the interview through an electronic method.
- Allowing the parties’ attorneys to question the child in court without the presence of the parties
- Regardless of the parties’ representation status, the court can allow the child to testify by:
- Interviewing the child without the parties physically present but allowing the parties to view the interview simultaneously through the electronic method. This is only allowed if the court believes that the parties’ ability to view the interview will not interfere with the child’s best interest.
- Having the child interviewed by a third party.
Alternative Method Considerations
A judge considers the following factors when allowing a child to testify in a custody trial via an alternative method:
- Where the testimony will be taken.
- Who will be present when the testimony is taken.
- How the child will be questioned.
- Whether an electronic method is possible.
Protecting the Child Witness
The court must ensure that any child considered as a child witness in a custody case is protected from harassment, embarrassment, and unnecessary repetition of questions. The questions must also be delivered in an appropriate way given the child’s age and level of understanding. Courts also tend to try to avoid having a child testify in open court since that environment can be frightening and stressful\
If you are facing a child custody case and would like assistance with your legal proceedings, the knowledgeable family law attorneys of Carlson & Work in Reno, Nevada can help. Contact Carlson & Work today at 775-386-2226 for guidance with your child custody case.