My 12 year old daughter wants to speak to the judge in order to tell the judge that she wants to live with me. Will she have to take the stand? Possibly. A child may be called to the stand, placed under oath, and then questioned under oath. Most parents agree that they would prefer to not have their child subjected to that stress. Ultimately the Judge will decide whether the child may be called as a witness.
Sometimes the Judge may request to speak to the child in the Judge’s chambers, away from the attorneys and/or parents. However, if one parent objects, then that will not be allowed. In other instances, the Judge, the attorneys and the child may meet in the Judge’s Chambers and the child may be questioned at that time. Each attorney will have the opportunity to question the child after the Judge has completed his/her questioning. Judges in different counties may handle this situation differently.
I have heard that a Guardian ad Litem can speak on behalf of my child. What is a Guardian ad Litem?
A Guardian ad Litem (commonly referred to as a GAL) is appointed by the Court to act as the spokesperson for the child. Both parents may agree to have a GAL represent the child, and generally the fee is shared. If one parent objects, then a hearing may be required in order to ask the Court to make the final determination as to the appointment of a GAL. The GAL will interview the child, the parents, and other family members. The GAL may visit the home. The attorneys may speak with the GAL and the GAL may be required to testify at Court. The GAL represents to the Court what is in the best interest of the child, so even if the child wanted to live with one parent, the GAL may testify that it would be better for the child to live with the other parent. The Judge generally accepts what the GAL advises.
Some neighbors of mine talked about having The Child’s Advocate represent the child. Does that person tell the Judge the wishes of the child? Yes. Unlike the GAL, who reports what he believes is best for the child (whether the child agrees or not), the Child’s Advocate (TCA) reports the wishes of the child to the Court. The Child’s Advocate may not be available in every county. In Wake County, The Child’s Advocate is a project of Legal Aid, and the TCA is appointed by a Judge, usually in high-conflict custody cases, and cases which may involve abuse, domestic violence or substance abuse. The TCA is the attorney for the child client, and ensures that the child’s wishes are heard. The TCA may interview the family, and anyone else that has knowledge about the child, including teachers, day care providers, medical and mental health providers. Should custody proceed to a hearing, the TCA will represent the child, just as attorneys may represent the parent(s).
My brother’s friend said a therapist could testify about the child’s wishes. How does that work? It is not recommended that you begin therapy for your child just to have a witness to testify about your child’s wishes. Some therapists clearly state in their client agreements that he or she will not testify in Court. Additionally, therapy for a child should be something that is discussed between both parents and is determined to be needed for the child.
My son is 15 years old. He’s decided to not visit his Dad, and that he wants to live with me only. He never wants to see his father again, even though the Custody Order established 50/50 custody. He can decide, right? No. Until a child reaches the age of majority (is no longer a child) then he cannot unilaterally make that decision. In North Carolina, the age of majority is 18 years. If you believe that current Child Custody is no longer working, then a parent may file a motion to have the current custody order modified. However, you must encourage the child to continue a relationship with the other parent, or you could be held in contempt of Court.
In summary, it is a heavy burden to place the decision of parental contact on a child. Most Judges will not allow that final decision to be made by a child. Be careful to not discuss custody issues and/or litigation with or in the presence of your child. Never use your child as a legal pawn or the custody arrangement as a legal strategy. The manner in which the parents conduct themselves during this difficult time may have far reaching and longstanding implications.