By: Attorney Alexis L. Doree
Custody and divorce cases involving minor children can be emotionally difficult for everyone involved. One of the most asked questions parents ask is: “Will my child have to testify?”
In North Dakota, children may participate in custody proceedings, but courts approach the issue with caution. Judges recognize that involving a minor child in litigation can place significant emotional pressure on them. Because of that, there are specific standards governing when and how a child’s voice may be heard.
Is There a Minimum Age for a Child to Testify?
The simple answer is no. North Dakota law does not set a minimum age for a child to testify in a family law case. Instead, the court evaluates whether the child has sufficient:
- Maturity;
- Sound judgment; and
- Ability to understand and communicate truthfully.
In practice, courts are more likely to consider testimony from teenagers or older school-age children. However, age alone is not determinative. A younger child who demonstrates exceptional maturity may be heard, whereas an older child whose opinions appear to be influenced by a parent may not.
When Would a Child Testify?
In cases involving minor children, North Dakota courts determine custody based on the best interest of the child factors. One of those factors allows the court to consider a child’s preference if the child is mature enough to express an independent and reasoned opinion.
Before allowing testimony, judges will look at:
- Whether the child understands the difference between truth and a lie;
- The child’s emotional maturity;
- Whether the child appears coached by a parent or family member;
- The potential emotional impact of testifying.
It’s important to note that a child’s preference is only one factor. The Court’s ultimate focus is always the child’s safety, stability, and overall well-being.
How does a Child Testify?
There are generally two ways a child’s input may be received.
- In Chambers Interview
This occurs when the judge speaks privately with the child outside the courtroom. Attorneys are typically present and may submit questions for the judge to ask. This method is often preferred as it:
- Reduces pressure on the child;
- Avoids forcing the child to choose sides in front of their parents; and
- Allows the judge to assess the child’s maturity and reasoning personally.
Both parents must consent to an in-chambers interview. If either parent objects, the child must then testify in open court.
- Testifying in Open Court
The child may testify in open court like any other witness. This means the child will testify under oath, and both attorneys will be permitted to question the child. As this process can be extremely stressful for a child, judges carefully consider whether requiring open-court testimony is truly necessary before allowing it.
What are Alternatives to Having a Child Testify?
Yes. Courts and attorneys will look for alternatives to having a child testify, such as:
- Guardian ad Litem investigations;
- Appointment of a parenting investigator; and
- Input from therapists or other professionals.
These options allow the court to understand the child’s experiences and needs without requiring the child to testify.
What Parents Should Know
While parents may believe having their child testify will strengthen their case, courts and attorneys are very cautious about placing children in that position. Before requesting a child’s testimony, parents should consider:
- The emotional impact on the child;
- Whether the child feels pressure to choose sides; and
- Whether other evidence can better communicate the child’s needs.
Conclusion
Every custody case is different, and decisions about child testimony depend heavily on the specific circumstances of each family.
If you are involved in a custody dispute and have questions about whether your child may be asked to testify, please get in touch with Rosenquist Law Office at (701) 775-0654 or email us at lawinfo@rosenquistlawoffice.com to consult with an experienced family law attorney who can help you understand the process and protect your child from unnecessary stress.
The information contained in this article and on this website is for informational purposes only. This information is not legal advice and should not be relied upon as such.
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