Q: Can children testify in a divorce or custody trial?
A: Yes, children are allowed to testify in a divorce or custody trial if they are 10 years old or older. Children under 10 may also testify if they appear able to correctly and truthfully explain facts to the court.
Q: How does a court decide if a child is able to tell the truth or remember facts correctly?
A: If there is any question about a child’s ability or willingness to tell the truth or accurately remember information, the judge will interview the child to determine if the child can testify. The judge or magistrate will talk with the child about the difference between truth and a lie and will ask general questions about the child and his/her family, friends, pets and school. If the court determines that the child can answer questions and can correctly and appropriately relay information to the court, then the child will be allowed to testify.
Q: Can a child witness be asked the same questions as an adult witness?
A: Although there are no restrictions on the sorts of questions a child can be asked, many factors are considered when deciding what questions should be asked of a child witness and how they should be asked. Depending on the child’s age and maturity, questions must be asked in a way that the child can understand and correctly answer. For example, a child should be asked direct, clear questions one at a time using age-appropriate vocabulary. Individuals should be described using names that are familiar to the child (e.g., “Uncle Johnny”) rather than pronouns. Children may say “I don’t remember” when they really mean “I don’t know” because they may believe that not knowing an answer can get them in trouble. The questioner should explain that “I don’t know” is an acceptable answer.
Q: Can my son’s wishes or observations be presented to the court without making him testify?
A: Yes. In fact, children do not ordinarily testify before the court in a divorce or custody case. In most cases, where there is a disagreement about who will have custody or the amount of time a child will spend with each parent, the court will appoint a guardian ad litem to investigate the child’s situation. Following this investigation, the guardian ad litem is responsible for reporting to the court what he or she believes is in the child’s best interest. However, even if the court appoints a guardian ad litem for your son, the judge or magistrate can still interview him. This type of interview, called an “in camera” interview, would occur in private with the judge or magistrate, your son and his guardian ad litem and/or attorney, and will be conducted without either parent being present. The court can use this method of interviewing your son and determining his wishes rather than requiring him to sit in the courtroom and answer questions in front of you and his other parent.
Q: What kinds of questions does a judge or magistrate ask a child in an “in camera” interview?
A: Each judge or magistrate handles talking to a child differently. The questions asked will differ depending on the age of the child and the issues that must be decided in the case. For example, children may be asked questions about their likes and dislikes and sometimes their memories of certain important events that may impact the court’s decision on the case.
Q: How old must my son be before he can decide whether he wants to live with me or his mother?
A: Current Ohio law does not give children the right to choose one parent over another for purposes of living arrangements. From 1974 to 1991, Ohio law said that any child 12 years old or older could make such a choice. However, since 1991, the "wishes of the child" is only one of several factors that the court must consider when determining who should have custody of a child, according to the Ohio Revised Code [Section 3109.04(F)].
This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by Joseph Nigh, a partner in the Columbus firm of Tyack, Blackmore, Liston, & Nigh, who practices primarily in the area of family law.