Maybe. Most likely not. In many divorce cases, children have important information the court needs to determine what custody arrangement is the children’s best interests. However, many parents simply do not want to put their children in the situation of being called as a witness in open court against the other parent. Most Indiana trial court judges do not want the children under the pressure of being pitted against their parents. So then how can a child’s voice be heard in court? This blog covers four common ways the evidence the child has is brought up in court so the judge can decide the case with this information.
Child Witness. For a long time, the law in Indiana held that a child under ten years of age was presumed to be an incompetent witness. This means that for children ten or younger, they would not likely be able to testify. This statue has been repealed, and not the test if whether the child is developed enough to provide accurate testimony, such as being able to tell right from wrong. Young children often engage in fantasy thinking and with this test, they are not allowed to testify as a witness if they do not know right from wrong or what is true or false. However, judges still are generally not receptive to calling a child as witness. Only in rare cases will most judges allow a child to be called as a witness. Consult your attorney and know your judge before you plan to call a child witness.
GAL/CASA. Under the statues for divorce and paternity, there is a provision to get a child guardian ad litem or court-appointed special advocate. When a party asks for such, these trained professional make a custody recommendation in the child’s best interest to the court. They do so by interacting with the child and learning his or her concerns, then preparing a report and testifying. In most cases, a GAL or CASA can make your child’s voice know in court without the trauma of having to testify in court. However, GALs and CASAs have limitations on what they can assess because they are not child psychologists. Does your case need a GAL or CASA or is the underlying dynamic such that a child forensic psychologist needs to be used for this process? Clearly, cases of mental illness of a parent are better handled by a child psychologist.
Custody Evaluation. In many senses, a custody evaluation is much like a GAL or CASA handling the case. Both interview and interact with the children. However, forensic Ph.Ds are able to do psychological testing on the parents to determine if they have mental illness or other personality traits that limit their parenting and make recommendations to the court of what is in a child’s best interests. Thus, they not only consider what a child tells them, but can tell why a child may behave such a way or identify other problems in parenting to make a more comprehensive recommendation to the court about what custody arrangement is in the children’s best interests. The only downside is child psychologists are more expensive than GALs and CASAs. Do the dynamics of your case necessitate a custody evaluation? Is this within your legal budget?
In-Chambers Interview. In some cases–parents and/or attorneys who really think the child needs to be actually heard by the judge—a party will ask for an in-camera interview. This is a legal term of art. This occurs by a party filing a motion for an in-camera interview. If this is granted, then the judge (and sometimes the attorneys) meet with the child in the judge’s office and ask the children questions so the judge can assess the credibility of the child’s answers; the judge sees the child’s demeanor and body language as well. Many judges are averse to in-camera interviews but may grant such a request in the right case. Is this your case?
Ultimately, while children are rarely called as witnesses in a case, there are a variety of tools to allow their observations and wishes to be heard. Which tool is right for your case depends on your trial strategy and theme, but rest assured divorce and paternity laws provide numerous resources for lawyers and litigants to access so the court can decide the case in the child’s best interests. This blog as written by attorneys at Dixon & Moseley, P.C. who handle divorce and paternity cases throughout the State. This blog is intended to provide general educational information. It is not legal advice or a solicitation for services. It is an advertisement.