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Myrtle Beach, SC 29577
“Will my child have to testify” is a common concern that parents ask us when they have decided to seek a divorce or when there is a custody dispute.
In some cases, parents want their child to testify because it could sway the judge in their favor or because it provides additional evidence and support for their claims against the other spouse.
In most cases, however, parents are understandably concerned because they don’t want to expose their children to a potentially harmful experience where they are forced to testify against one of their parents.
Below, we will discuss child testimony in SC family court cases, including:
For concerned parents who ask, “will my child have to testify,” the answer is probably not.
Child testimony in the family court is rare, although there are situations where it may be necessary, and attorneys and judges will usually prefer that children not testify because it can be damaging to the child and their relationship with their parents.
There are circumstances when a child’s testimony is necessary, however, and the family court rules do provide for child testimony when it is essential to the issues in the case.
SC Family Court Rule 23, “Presence or Testimony of Child,” addresses both child testimony and the presence of children in the courtroom when testimony is being given:
(a) Presence in Courtroom. Generally, in actions of parents against each other, or where the conduct of either parent is an issue, the children should not be allowed in the courtroom during the taking of testimony.
(b) Testimony. Children should not be offered as witnesses as to the misconduct of either parent, except, when, in the discretion of the court, it is essential to establish the facts alleged.
The general rule is that the children should not even be present in the courtroom when someone is testifying about the conduct of one or both parents. Regarding child testimony in family court cases, it should only be done when it is necessary to establish the allegations in the case.
Rule 23 specifically addresses child testimony to establish the misconduct of a parent – a common issue in contested divorce or custody proceedings – and states that children should not be called as witnesses to establish misconduct unless the testimony is essential.
When a child needs to testify in a family court case, how is it done?
The answer depends on the child’s age, the wishes of the parents, and, more importantly, what the judge thinks is appropriate under the circumstances. The judge in a custody case has considerable discretion in fashioning an appropriate procedure that gets the needed testimony while protecting the child.
The court could have the child testify like any other witness in open court, subject to a direct examination and then a cross-examination by opposing counsel. This might be appropriate in some cases where the child is older, but the judge has other options that may be less stressful for the child.
For example, Family Court Rule 22 says that the judge in your case has the right to talk to a child in a private conference (in chambers or a conference room instead of in open court), and the court may require a guardian ad litem and/or the parents to be present during the interview:
In all matters relating to children, the family court judge shall have the right, within his discretion, to talk with the children, individually or together, in private conference. Upon timely request, the court, in its discretion, may permit a guardian ad litem for a child who is being examined, and/or the attorneys representing the parents, if any, to be present during the interview.
Whether the testimony is taken in open court or a private conference, the judge can take steps to protect the child by limiting the questions to the necessary facts relevant to the issues in the case, taking care not to force the child to relive past traumatic experiences, and controlling the method and extent of questioning by the attorneys.
Especially for younger children, testimony in custody or divorce proceedings can be difficult and even traumatic. Forcing a child to testify against one of their parents, which the child may also see as choosing between parents, is something that parents and courts should avoid whenever possible.
A parent’s concern when they ask “will my child have to testify” is not only valid but is a concern that is shared by the attorneys and judge in the case. Your child will probably not have to testify in your case, but, if they do, your attorney and the court will take every reasonable precaution to protect your child during the process.
Questions about child testimony in the family court in SC?
If you are considering separation or divorce and there are children involved, your Myrtle Beach child custody lawyer on the Axelrod team will make every effort to prove your case without subjecting your children to in-court testimony.
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