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Child Testimony in Divorce and Custody Cases

Child testimony has been a sensitive subject in most courts and jurisdictions with some courts allowing testimony in extreme cases while in others limiting the ability of the child to testify in an attempt to shield the child from tensions between parties and the conflict of the court case. In most situations it is general practice in the state of Georgia to reserve a child’s testimony for only extreme situations and in such situations that the testimony will take place in the privacy of the judge’s chambers and exclusively in a conversation between the child, judge, and Guardian Ad Litem (GAL) if necessary.

In order for a child to be able to testify as a witness they must first be declared competent. Some states may restrict the determination of competency to the age of 14 as in Georgia or they may assess the child’s independent abilities establishing that the child is aware and competent to provide testimony. Federal law and most state law presumes young children are competent to stand trial. The standard for witness competency requires that the child have a sufficient level of intelligence, comprehension to observe and re-state information, to comprehend the importance of taking an oath, and the need for their statements to be the truth. If the ability of the child to testify is called into question then the judge may implement a voir dire processes which evaluates if the child knows the difference between truth and lies, is prepared to testify truthfully and is capable of communicating and remembering details describing what they witnessed. If a child’s competency is established and they are declared competent by the court then they may testify regardless of age.

Child Testimony in Divorce and Child Custody Cases Special Provisions:

Child Testimony in Divorce and Child Custody Cases Some courts and states have specialized procedures and laws to protect children testifying in the court room. Mostly the specialized procedures are implemented in situations in which the child may be forced to testify in front of the abuser. In criminal cases under the 6th amendment the accused should have the ability to confront the abuser. However, this is generally interpreted as being the case when both individuals are adults and of the same mental and physical capacity. Since this offers an unbalance of power within the court room procedure certain legal measures have been instituted for children to transfer pressures indirectly. For example a child may be able to allow for another individual to testify on their behalf- which is generally the case when resolving civil matters and possibly has made a rule which excludes the child from testifying.

Other special provisions may be made to alter the environment of the court room or the method in which the child is able to testify. For example the child may testify via video camera, may testify through videotaped deposition, speak to the judge in chambers, have a screen placed between the child and the accused, or have adult assistance in the court room by standing or sitting with a person they share a close bond with.

Child Testimony in Divorce and Child Custody Cases Relaxations of Court Rules:

The court may also relax the court rules or environment to accommodate for a child’s testimony by:

• Not wearing Judges robes – more casual / comfortable dress
• Altering the courtroom environment – not forcing the child to testify from the witness stand.
• Frequent breaks in between testimony – not putting pressure on the child for long periods of time.
• Keeping out media or public from the courtroom during the child’s testimony. However, this may not be permitted in related criminal cases as it may interfere with the press’ and public’s abilities under the first amendment.

The Availability of Special Measures:

Special measures may only be implemented in particular situations and in compliance to the procedures of the court in compliance to state statutes and are dependent on the specific litigation involved (criminal v. civil). In most cases, criminal proceedings will be less likely to receive special provisions and any case receiving provisions will most likely receive the testimony during a preliminary court hearing. However, any of these decisions concerning testimony and witness protections fall under each individual judge’s discretion and preference in most cases.

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