Does a Child Have to Testify at Trial?

Empty judge chair in a courtroom

Open Court Testimony

It is rare for a child to testify in a custody proceeding. Parents and courts generally recognize that it harms children to (1) make them testify in open court, and (2) make them choose between their parents—especially to their faces in open court. In addition to the anxiety that anybody has speaking in front of a group of people, children may fear getting in trouble or hurting their parents’ feelings with what they say in court—which can impact the reliability of their testimony.

However, the law tries to balance a child’s best interest with the right to confront witnesses in court. So when the issue of child testimony arises, courts must determine whether a child should testify at trial, or whether an “alternative method” of admitting evidence is more appropriate.

The alternative methods analysis requires a court to look at the following factors:

  • Alternative methods reasonably available;
  • Available means for protecting the interests of or reducing emotional trauma to the child without resorting to an alternative method;
  • The nature of the case;
  • The relative rights of the parties;
  • The importance of the proposed testimony of the child;
  • The nature and degree of emotional trauma that the child may suffer if an alternative method is not used; and
  • Any other relevant factor.

Again, courts will almost always prefer an alternative method if child testimony is necessary.

Interview by the Judge in the Courtroom

One very common alternative method of obtaining child testimony is for a child to speak directly with the judge in the courtroom with no attorneys or parents in the room. This can involve the child, judge, and court reporter alone, and may also include a guardian or attorney appointed to represent the child’s interest. Due process requires that the interview be recorded and that both parties be afforded to submit lines of questioning to the judge. Fortunately, the technology available at the courthouse makes all of this possible and each judge has a different protocol for interviewing children outside the presence of the parents.

Child’s Statements to a Professional

Another alternative method frequently used by the court includes having the child speak with a guardian ad litem, social worker, or therapist. The court will consider a report from this person in place of the child appearing to testify.

Call Viloria, Oliphant, Oster & Aman L.L.P.

Viloria, Oliphant, Oster & Aman, L.L.P. provides a comprehensive array of family legal services to individuals in Nevada, including for issues of family law. If you need help resolving a child custody issue, our attorneys can compassionately guide you toward a resolution. Our attorneys are experienced, knowledgable, and proven. Let us fight for you. Contact Viloria, Oliphant, Oster & Aman L.L.P. today at (775) 227-2280 to schedule a consultation or contact our office through our website.

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