Will the judge speak to my children in a custody case?

A child’s testimony may not be necessary. 

Clients often wonder if the judge will speak to their children in a child custody case?  In general, most judges that I have encountered are very reluctant to speak with the children.  However, there are some judges that are happy to speak with the children.  The custody statute allows the judge to take into consideration a child’s preference when the children are of a sufficient age and maturity to voice a preference.  The ability for judges to speak with children is not automatic.  A party must file a motion requesting that the judge speak to the children and a hearing must be held.  It is advised that you do not bring the children to any court hearings unless specifically directed to do so by the judge.

If a judge does allow the children to testify, the testimony is not usually done in a typical manner.  Normally the family law judge will speak to the children in the judge’s chambers. Neither parent is present when the children testify.  Usually the lawyers are not present either.  A court reporter may be present and your lawyer may submit questions for the judge to ask the children.  I tend to counsel my clients to avoid requesting that the children testify.  In general you want to shelter the children from the litigation as much as possible.  Especially younger children.

A recent Fifth District Court of Appeals case dealt with this issue.  in Orizondo v. Orizondo, the family law judge spoke with the parties child who was almost 18.  The family law judge stated in it’s order that it abdicated directly to the minor child’s preference.  The appellate court did not think this was appropriate.  A trial court may listen to a child’s preference, but it should not abdicate to that preference.  The family law court still must make a decision that they think is in the minor child’s best interest.

If you think that you would like to have your child testify in your custody case or require legal assistance in other areas of Family Law you may always contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected].