Can Children Give Testimony During a Custody Hearing?

Colorado family courts make all decisions in a child’s best interest, including for physical custody and legal decision-making rights.

When deciding on child custody cases, the court considers many things, including each parent’s relationship and daily interactions with their child, each parent’s willingness to facilitate continued close contact between the child and the other parent, the proximity between residences, any history of abuse or neglect, and the child’s preferences.

But, does this mean divorcing parents can expect their child to have to give testimony during their divorce hearing?

Testifying In Court Is Not In a Child’s Best Interest

Although a child’s wishes are one aspect of child custody that a judge carefully considers, Colorado judges understand that it is not in a child’s best interest to testify in court. The stress, fear, and anxiety a child would experience in a courtroom, and the trauma of answering questions that could negatively impact either parent, can cause tremendous distress.

Colorado judges almost never require a child to give testimony during custody hearings because it’s detrimental to a child’s mental health, which is not in their best interests.

A child testifying in court can have both short and long-term impacts, including the following:

• Fear, anxiety, and emotional distress
• One parent can easily manipulate a child into speaking negatively about the other
• If a child testifies in court and one parent is awarded primary custody, they will feel responsible for the other parent’s anguish or anger
• A child who testified in court could later threaten to testify again if they wish to manipulate their custodial parent to getting something they want

In the worst-case scenario, a child could be left feeling guilty for the rest of their life if their testimony swayed a judge in one parent’s favor and the other parent turned to substance abuse, criminal action, or suicide in response.

How Does a Judge Hear a Child’s Opinion In a Custody Case?

The law requires a Colorado judge to regard a child’s opinion as just one of many considerations before making a decision. This rule applies only when a child is old enough and sufficiently mature to express their opinions and preferences reasonably.

In many child custody cases, a judge first assesses a child’s maturity to determine if they can reasonably express themselves, since there is no set age, then they learn the child’s opinion and preferences on their custody situation in one of several ways:

• Through a child custody evaluation performed by Child and Family Investigation (CFI), which involves a social worker or mental health professional’s investigation and interviews with the family members, including the children
• Through a Parental Responsibilities Investigation (PRI), a court-ordered assessment of the family dynamics and interpersonal relationships between children and their parents through interviews and observation
• Through an interview meeting in the judge’s chambers

Under C.R.S. 14-10-126, the law states the following:

“Upon a motion, the court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities. The court may permit counsel or a licensed legal paraprofessional to be present at the interview.”

How Can a Colorado Child Custody Lawyer Help?

Child custody is inarguably the most important outcome of any divorce involving children. No parent should go through the process without an attorney’s skilled legal representation during their court case, including when a child is old enough to express their opinion or when there is a court-ordered evaluation.

Instead, call the child custody lawyers at Ciancio Ciancio Brown, P.C., so we can provide the experienced legal counsel you need for favorable results in your Colorado child custody case.