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Should Children Testify in Custody Cases?

Posted by J. Benjamin Stevens | Feb 09, 2015 | 0 Comments

One of the most common misperceptions in child custody cases has to do with the testimony of children. Should children testify in custody cases? Do children ever testify in Family Court? If so, when and why? Typically children do nottestify in custody cases, because Family Court Rule 23 states

Presence of Testimony of Child

(a) Presence in Courtroom. Generally, in actions of parents against each other, or where the conduct of either parent is an issue, the children should not be allowed in the courtroom during the taking of testimony.

(b) Testimony. Children should not be offered as witnesses as to the misconduct of either parent, except, when, in the discretion of the court, it is essential to establish the facts alleged.

So while children typically do not testify in Family Court in custody cases, some judges will conduct an interview with the child as permitted by Family Court Rule 22, which states

Interview With Child 

In all matters relating to children, the family court judge shall have the right, within his discretion, to talk with the children, individually or together, in private conference. Upon timely request, the court, in its discretion, may permit a guardian ad litem for a child who is being examined, and/or the attorneys representing the parents, if any, to be present during the interview.

Knowing when to (and when not to) request such an interview can be difficult, and it definitely helps to have the advice of an experienced family law attorney. Allowing a child to have direct input regarding custody matters may be a good thing, you have to be very careful given the potential harm that could result from such a decision. You should consider the following before involving your child in your South Carolina divorce case:

1. Is the testimony necessary?

The very first question to ask yourself when considering interjecting your child into a custody dispute is whether or not the testimony is truly necessary. This can be hard to know and it can also be hard to separate out your competing motivations. Is your child truly in dire circumstances? Would your child be able to inform the judge about something that he may not otherwise know or understand? Is the value of that information greater than the cost?

Never allow a child to become involved simply to get revenge against your former spouse or as part of a ploy to walk away with slightly more visitation time. Only allow your child to get involved if he or she is experiencing extremely difficult circumstances and feels a strong desire to express his or her wishes to the judge.

2. What is the long-term impact?

Another important factor that must go into any calculation regarding children participating in the court process is the long-term impact of their doing so. In the short-term, it may simply result in increased time with one parent. Over the long haul, this could have a profound impact on their life. Providing information against one parent is an emotional decision and can take a tremendous toll on children who feel caught between two parents they love. It can also deeply damage if not destroy the relationship between that child and the other parent, a relationship that is important to their overall wellbeing. This can be tricky psychological territory and should only be entered into knowing the potential long-term costs.

Source: “Divorce Confidential: Child Testimony in Divorce Proceedings,” by Caroline Choi, published at

About the Author

J. Benjamin Stevens

Senior Partner


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