When custody is at issue in a divorce, or when unmarried parents separate, the process can be difficult not only on parents, but also on the children of the couple. If parents aren’t able to decide on custody, a court will decide for them. This can be stressful and create worry for both parents, especially when it comes to decide whether a judge will make a child to testify in Tulsa.
Wondering who will get primary custody — both physical and legal custody — and how parenting schedule is determined, can be a long overwhelming process. One of the issues in this type of custody determination is whether your children will testify before the court.
Typically, the reason for your child to testify at a custody hearing is to express a preference as to which parent they would like to reside with.
Before a child can testify, there are several factors that must be met first. The court has broad authority to decide whether a child can testify when considering these factors.
Factors The Court Considers For A Child To Testify
- Child’s Best Interests. If the judge determines that it is in the child’s best interests to testify and express their preference, then the judge has the authority to allow it.
- Intelligent Expression. The judge will decide whether he or she believes that the child is capable of forming an intelligent expression of opinion when it comes to preference. In Oklahoma, the law presumes that any child 12 years of age or older is capable of expressing an intelligent opinion.
- Judgement and Maturity. The child must demonstrate that they are capable of good judgment, and not influenced by either parent. In addition, ability to demonstrate maturity and understanding of hearing and purpose is important.
- An example of an immature expression is “I want to live with Mom because she doesn’t make me do my homework.”
- However an example of a mature expression is “I want to live with Mom because I feel safe and she supports my participation in my sports team.”
Once the judge determines that a child shows good judgement, maturity, and intelligent expression of opinion, the next steps include how the child testifies. There are two primary ways the child can express their preference to the court.
Appoint A Guardian ad Litem
Unlike an attorney appointed for a child in a high-conflict custody case whose sole duty is to represent the child in court proceedings, call witnesses, and cross examine witnesses the parents call in the case, a guardian at litem serves a different purpose.
The guardian ad litem is the child’s advocate, “friend,” and investigator. This role helps determines what the child’s best interests is and investigates, much like a social worker, the child’s home life, school life, and family life.
Often, this is necessary because the children involved in the custody dispute is being influenced by the parents. This way, the decision is taken out of the child’s hands while also considering the child’s preference as well.
The guardian ad litem can recommend to the judge, after all investigation is concluded and after discussing the child’s preference, what they believe would be the best custody arrangement.
Speak Privately With The Judge
If a guardian ad litem is not appointed, then the judge will usually still speak to the child in private. The judge will take into consideration the child’s best interests as well as the child’s preference.
By speaking to the child in private, the child does not have to fear being labeled as “disloyal” to either parent. The parents are reminded that while their child’s preferences may be taken into consideration, it is ultimately the court’s decision.
While your child is not required to testify at a custody hearing — and typically does not occur due to the pressure and stress testifying puts on a child — there is a possibility that it could happen.
Being prepared and openly talking to your child about their preferences, while remaining supportive, is best when preparing for a custody hearing.
If your child expresses a preference of remaining with you rather than the other parent, make sure you discuss this with your family law attorney so they can make sure the process is conducted properly and without coercion.
Free Consultation With A Tulsa Divorce Lawyer
Preparing for a custody hearing can be stressful. Knowing that your child may be asked to testify can be even more stressful.
Speaking to a Tulsa family attorney can explain the process, how to have a guardian ad litem appointed — if necessary — and the type of questions asked by the judge to your child, how long the process takes, and if your child qualifies to testify.
Contact an experienced Tulsa divorce attorney for help with child custody and expert representation for your divorce.
For a free, confidential consultation, call 918-924-5526 today.
