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Do Kids Testify in New Jersey Child Custody Cases?

paper cutout of family

Yes, they do. But it’s typically not something Family Courts will order if they can avoid it.

When it comes to divorce and child custody proceedings, adults often aim to keep the kids out of it. This is especially true when the children themselves are the central conflict - namely, in New Jersey child custody disputes.

But it’s also true that sometimes the Family Court decides that insight from the child is both relevant and valuable for weighing important matters in the case. In those situations, they may compel child testimony.

Such a decision isn’t one most Family Court judges take lightly. In fact, most will shy away from it if possible. If there is any alternative means of obtaining the information, they’ll likely lean toward that. They want to avoid the risk of adverse mental and/or emotional impact. But if there’s a good reason for it and nowhere else to get answers, child testimony may be necessary.

How Old Do They Have to Be?

While there is no set age at which Family Courts can compel testimony from a child in a custody case, East Brunswick child custody lawyers will usually tell you the generally accepted age is somewhere around 14. To be deemed “competent” to testify, the youth must display understanding between the truth and a lie, and promise to tell the truth.

The New Jersey child custody statute, N.J.S.A. 9:2-4, indicates the preferences of a child can be factored into the custody/parenting time decision, but only “when the child is of sufficient age and capacity to reason so as to form an intelligent decision.”

That’s intentionally left vague to account for the fact that not all kids mature at the same pace. Some 12-year-olds may be prepared for such a task, while some 15-year-olds won’t. That said, it’s unlikely a child under 12 will be expected to testify in most cases.

Procedures for Child Testimony in Family Court

Another guiding policy on this matter is New Jersey Rule 5:8-6 - which specifically addresses the testimony of children in Family Court. It states that when deciding child custody matters, the Court may - on its own motion or at the request of one of those involved - conduct an “in camera interview” with the child(ren). What this means is that child testimony isn’t given in public up on the stand, as we would expect of adult witnesses. Instead, it’s conducted in a private conference with the judge and a stenographer. Both sides are usually able to submit questions to be asked during that interview, and transcripts will be provided to both parties. Even so, parents are prohibited from discussing or revealing the contents of that interview with the child or any third parties without express permission from the Court. Transcripts can be provided to expert witnesses retained on the issue of child custody.

In general, Courts decide whether they’ll conduct such interviews prior to the trial, though a judge may call for one in the midst of the proceedings if there are grounds for good cause. A parent who wishes to have their child testify in a child custody hearing must identify them as a witness at least 60 days prior to the hearing. It’s a good idea to provide a thorough explanation to the Court about why the child’s testimony is relevant, what questions of fact it will help to answer, and why this is the best/only way to provide those answers.

If you’re gearing up for a New Jersey child custody case and have concerns about whether your child can or should testify, these concerns should be addressed with an experienced New Jersey custody lawyer.

Our New Jersey divorce lawyers can assist clients with divorce, division of assets, prenuptial agreements, child custody disputes, and more. Call us at (732) 810-0034 or visit us online.

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