Does My Child Have to Testify at the Custody Trial?

child custody lawyer lansdale paBy: Liam J. Duffy, Esquire

My clients often ask me this question. The answer is, “It depends.” It usually depends on the age of the child and the content of the testimony. Most parents involved in a custody dispute would prefer to testify on behalf of a child. The number one reason for this is to keep the child out of the dispute and from forcing the child to pick sides. Most parents assume they will be permitted to testify on behalf of a child at a custody trial. After all, on a weekly basis it is completely appropriate for the same parent to recite the child’s statements to other professionals, including teachers, doctors, and coaches. As a result, they are usually surprised when I tell them that based on the Rules of Evidence, the court will probably not allow the testimony. The parent testifying as to what the child told him/her is considered inadmissible hearsay testimony, unless it falls into an exception to the hearsay rule. Hearsay is defined as a statement made by someone out of court that is being offered in evidence to prove the truth of the matter asserted. This means that unless the proposed testimony of the parent falls into a hearsay exception, the child could be required to testify unless the child is too young.

However, there is no statute or rule that provides an acceptable age at which a child can testify. Family law judges are far from consistent when it comes to this. Certain judges won’t allow the testimony of children under ten years of age. Certain judges won’t allow the testimony of children under five years of age. And certain judges will allow a child of any age to testify as long as the child is competent. Competency primarily deals with a person’s ability to perceive, remember, and communicate accurately.

Further complicating matters is that in Pennsylvania, a custody judge is required to consider what the child wants. Section 23 Pa. C.S.A. §5328(a)(7) states that a factor the court is required to consider when ordering any form of custody is “The well-reasoned preference of the child, based on the child’s maturity and judgment.” This statute often causes a conflict between the Rules of Evidence and the requirement that the Judge consider the child’s wishes. That’s why the original answer to this is “It depends.”

Parents with questions about child custody should consult with an experienced family law attorney. Keep in mind that these questions should be addressed well in advance of a custody trial. Certain rules require that witness information and proposed testimony be provided in advance of the trial. We are able to assist if you have need for a family law attorney. I can be contacted at 215-822-7575 or to discuss these and related issues.