Shy child hiding her face.

If you’re in the midst of an especially heated child custody case, it might seem like a good idea to involve your children in the dispute. For instance, you might think that their opinion could sway the judge or provide additional support for arguments you have made against the other parent. But is taking this approach really a good idea?

Are children allowed to testify?

The short answer is “very rarely, if ever.” 

Family Court Rules 22 and 23 govern the presence of, interviewing of, or testimony of a child in family court matters in South Carolina. The requirements and provisions generally preclude children from testifying in custody cases except in circumstances that can only be approved by a family court judge presiding over the matter. Subsection (a) of Rule 23 states “Generally, in actions of parents against each other, or where the conduct of either parent is an issue, the children should not be allowed in the courtroom during the taking of testimony.” Subsection (b) states “Children should not be offered as witnesses as to the misconduct of either parent, except, when, in the discretion of the court, it is essential to establish the facts alleged.”

However, Rule 22 does allow for a judge to interview the child or children, “within [the judge’s] discretion, to talk with the children, individually or together, in private conference.”

When allowed, how is the child’s testimony taken?

In those extremely rare cases in which the Court determines that it is necessary to hear from the child, the Judge has the sole discretion to get this information in one of several ways. First, the testimony could simply happen in open court, like other witnesses, with the child being asked questions by the opposing attorneys. This is almost never done, as most family court judges will go to extreme measures to protect children from ever becoming a fact-witness against another family member in open court.

Instead, if the Court decides that it needs to hear from the child, this is almost always done through a private interview in the Judge’s chambers pursuant to Family Court Rule 22. In most cases, only the child’s court-appointed guardian ad litem is allowed to be present for this interview and typically no court reporter is present. Judges will also work with the guardian ad litem to find a way to deliver the child to the judge’s chamber in a way that avoids allowing the child to see the courtroom or any other family members who may be at the courthouse that day. Again, judges will typically go out of their way to make sure the child is not made to feel as they are in trouble or that what they say will get either parent in trouble.

Again, it cannot be overstated how very rarely either of these actually takes place in South Carolina family courts. 

Should children testify?

Experts universally agree that having children testify in child custody cases, especially when that testimony is seen as being for or against one parent, or another close family member, can be profoundly destructive psychologically. Forcing a child into making a choice between his/her parents or caregivers can cause damage that lasts for years into the future, and experienced family court practitioners and judges know it should be avoided if at all possible.

The family court will almost always appoint a Guardian ad Litem (GAL) for any children whose parents are involved in a contested child custody case. The most important purpose of this appointment is to allow the GAL to speak for the children during hearings or trials in Family Court. The GAL will have an opportunity to meet with the children, as often as necessary, outside of the courtroom environment, to get an understanding of any preferences, opinions, or experiences the children may have that the court should know about. The GAL will prepare both a written report for the Court about what they learn from and about the children, but they will also be asked to testify verbally and answer questions from the attorneys for the parties and the judge so that the Court can use this information to craft its final decision.

What if the child’s testimony is required?

In those extremely rare cases where the Family Court Judge determines that testimony from the GAL is not sufficient and deems it necessary to hear from a child, child psychology experts recommend the best way to go about this is:

(a) be sure that the questions are limited to objective facts, such as who, what, when, where, and why;

(b) merely get a record of what happened and don’t force the child to relive traumatic experiences in great detail; and

(c) remember that the goal, if the testimony is required, is to minimize the potential psychological impacts faced by the child.