In a child custody case, the judge makes a decision based upon what he or she finds to be in “the best interest” of the minor child. In making that determination, the court will consider any relevant evidence, including positive and negative things about both parents. Additionally, in some circumstances, the court will even allow a child to give testimony.
In North Carolina, there is no specific age at which a child may testify. The court is required to determine whether a child is competent to testify in determining whether the child’s wishes will be considered in the case. This determination is made by considering whether the child is of suitable age and discretion and whether the child has the ability to understand the difference between the truth and a lie. Generally speaking, the older the child the more likely the court will allow the child to testify.
If the court determines that a child is of suitable age and discretion, the court must consider the living preferences of the child, but the court has discretion as to what weight to give to the child’s testimony and wishes. In other words, even if a child is allowed to testify, the court is not required to follow the child’s wishes. Ultimately, the court will reach a decision based upon all evidence presented, including any child testimony, based upon what the court finds to be in the child’s best interest.
If the court decides to allow a child to testify, the court has options on how to take the child’s testimony. Unless otherwise agreed upon by the parties, the court will require the child to testify like any other witness on the stand and the court will allow the attorneys to question the child with direct and cross-examination. However, when the parties consent to do so, the court will allow the child to testify in chambers either with or without attorneys present.
If you are involved in a child custody matter and need representation or simply have general questions, call King Law today for a free consultation at one of our convenient locations.