This question has an easy answer: it’s highly unlikely.
In Colorado, the majority of judges will not allow minors to testify in a case, even if the children are almost legal adults. I recently worked on a case where a child was seventeen and a half, but even though this teenager expressed a strong desire to talk to the judge and was almost old enough to be considered an adult in the eyes of the State, the judge would not allow her to testify or even speak with her in private chambers.
If you are concerned that your child(ren) will have to testify in your divorce case, rest easy knowing that the legislature has taken steps to protect children from the confrontational, scary and overwhelming scenario of testifying in Court.
How Can My Child Express His or Her Opinion?
Since children are not allowed to testify, and most judges will not even entertain the idea of meeting with kids in chambers, you may wonder how your child’s opinions or desires can be expressed during a divorce case. This mostly comes up in determining the parenting schedule.
With a few hearsay exceptions, telling the judge, “Little Johnny said he wants to live with me,” isn’t going to work. This is considered hearsay by the Court, and it will not influence how the parenting schedule is determined.
The best way to express kids’ opinions to the Court is twofold: the first way is to ask that an attorney be appointed to represent the child(ren). This can get very expensive very quickly. In this scenario, the kids would have their own attorney present during a divorce or custody proceeding. Understandably, this doesn’t happen very often.
The more common way to get the kids’ opinions is through a custody evaluation. In Colorado, we have two kinds of custody evaluations. The first is a CFI (Child and Family Investigation) and the second is a PRE (Parental Responsibilities Evaluation). “Parental Responsibility” is the word that replaced the term “Custody,” which the legislature determined is a confrontational word.
The difference between a CFI and a PRE is in the amount of time and expense associated with it. The CFI cannot cost more than $2,750, and it virtually never includes psychological evaluations. PREs are generally conducted by PhDs, and they almost always include psychological testing. There is no dollar limitation on the cost.
As part of the CFI or PRE process, assuming the kids are old enough, they will be interviewed and their opinions will be incorporated into the report and/or recommendations made by the evaluator.
Why Can’t Children Testify?
I don’t believe that judges necessarily or expressly have the authority to prevent a party from calling a child as a witness (assuming the child meets the general criteria, which include things like being able to prove that the child knows the difference between telling the truth and lying). I’ve never seen anyone dispute a judge’s authority if he or she says, “No, I will not allow the child to testify.” Most people seem to inherently understand the undesirability of a scenario where a kid has to testify in his or her parents’ divorce proceeding.
For children, being asked to come to Court and answer questions about their home life can be very overwhelming, frightening and have lasting effects. Additionally, kids are very susceptible to manipulation by their parents; Little Sammy’s mom may have coached him in what to say when he gets up on the stand or talks to the judge. This can make it challenging to get clear answers from a child.
Furthermore, consider this worst-case scenario: suppose a child requests in Court to live full time with Mom, and the judge grants that request. Six months down the line, Dad is in a low place and commits suicide. The child will spend a lifetime trying to reconcile his/her request to live exclusively with her mother and wonder if she caused his/her father’s death. It’s not fair to put that kind of a burden on a child’s shoulders.
In other situations, if a child knows that he or she has the power to determine the custody arrangement, there is always the potential that the child will become, for lack of a better term, a monster. Imagine this: the kid is now thirteen, and he wants to play video games all day. If Dad says no, the kid comes back with something like, “If you don’t let me play video games all day, I’m going to request a change in custody so I can stay at Mom’s all the time.” As you can see, there are many reasons why judges do not like to have allow children to testify in Court.
If you are preparing for a divorce proceeding that involves kids, let’s talk. Call us at 303-449-1873 to set up a complimentary consultation.