Papa Don’t Preach: The Quickest Way to Lose Credibility in a Custody Case

Custody cases rarely require the testimony of children. Teenagers may have the opportunity to voice their opinions when formulating custody schedules, but children, particularly under the age of 10, are rarely called upon to speak with a judge. There is no specific law preventing a child from speaking with a judge or becoming involved in direct testimony, but keeping kids out of the courtroom unless absolutely necessary is a common interest among most in the legal field.

The reasoning is simple: children do not provide reliable testimony. Even the brightest of children lack the emotional maturity to provide reliable testimony. Questions need to be carefully crafted to be clear and straightforward, otherwise we risk confusion. Even if we believe the question was comprehensible, we can never be 100% positive that the child fully understood well enough to provide a substantive response. Imagine if the court did allow such testimony. Suddenly parents would be nervous to provide (healthy) discipline to their children for fear of a retaliatory meltdown in the courtroom.

Sometimes, however, a child does make it to the courtroom. For various reasons, a judge may decide to consider a child’s testimony, and it is critical that you do not coach the child on what to say.  We don’t suggest that you totally blind side the child, especially if they are customarily very shy and grow nervous or upset easily. Give them an age appropriate explanation of what they’ll be doing and what they can expect. Describe the courthouse to them. Chances are, if you have an attorney, you will probably arrange a meeting to meet prior to the event.

Regardless of what you tell them about the upcoming event, do not, under any circumstances, coach them on what they should or should not say. Your coaching will be obvious, no matter how subtle you think you’ve been, and while you risk losing ground in your case if your child says “the wrong thing”, you risk losing even more credibility if the court official believes the child was coached on what to say or how to say it.

I mentioned above that courts know that young children may not always give reliable testimony. A judge or hearing officer knows that when a child swears up and down that they hate their dad, it is entirely possible that their father refused to let them have chocolate cake for breakfast. The court official will likely ask follow-up questions to help clarify the situation.

The bottom line is this: if the court wants to speak with your child, whether old or young, it isn’t always so they can get their facts straight. In most cases they are just trying to get a clear understanding of the child’s perspective- how the child is adjusting, how the child may or may not be affected by a certain circumstance. You’ll have plenty of time to speak your case, so do not hijack your child’s narrative.

Teenager are similar, however, their testimonies tend to hold more weight than a 5 year old’s. If a teen decides to stop abiding by the custody schedule and refusing to do a custody exchange, a court will certainly be interested as to why. Teenagers are delicately wild creatures. If you are a parent of one, I probably don’t need to tell you that. If a teenager refuses to go to mom’s, it’s worth the court’s time to investigate why. Maybe mother has a new boyfriend that they child abhors. Perhaps they don’t like their bedroom. Worse, maybe they want to stay with friends.

Custody schedules for teenagers are difficult because they are independent enough to be involved in extracurriculars and part-time jobs, yet still dependent enough to need rides and permission slips. They usually do have social lives, and they’ll want to spend more time with friends than with parents. The custody window isn’t as wide as it once used to be, so scheduling time becomes increasingly difficult. A judge will determine if the fights they’ve been having with dad is the real factor contributing to their refusal to adhere to father’s custody time, or if the teen just wants to hang around mom’s so they can be near their friends.

Teenagers generally (try to) do what they want, but the court remembers that they are also still kids who still may not have all of their coping tools. Coaching them on what to say or do is also ill-advised. It is always painstakingly obvious when a child or teanager was coached, and by extension, who did the coaching. At the end of the day, instead of a judge hearing what you wanted them to hear through your child, they’re going focus more on figuring out why you wanted it. No matter what your intentions, it does not reflect well.

The examples given so far have all been relatively minor, talking about squabbles regarding custody exchanges. The truth is, a judge isn’t likely to bring in your child’s testimony over minor squabbles. If something serious, such as abuse, is going on in your case, that is all the more reason to refrain from coaching. It distracts from the issue and it loses you credibility.

Remember, your child is not a tool for you to use in the courtroom, and while it is difficult giving up that control, you need to remember that even if their facts aren’t always accurate, your child’s perception of the situation is never wrong.

This article was written by writer and content strategist, K. Gleason.

© 2018 JD LAW.  ALL RIGHTS RESERVED

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