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Custody Evaluations. Can Children Testify?

sad kid

Celebrity divorces are always news. In a recent article regarding the ongoing divorce of Angelina Jolie and Brad Pitt, Ms. Jolie was quoted as saying that she would not permit her children to testify at the up-coming custody hearing. This brings up questions that are common in a divorce involving children: can a child testify in court and is a child’s preference considered?

Before we answer that, there are some basics about Custody that should be reviewed. There are two forms of custody. Legal Custody refers to the parents rights to make decisions on the child’s behalf. These decisions can be related to health care, schooling, religion, or any significant decision that would directly affect the child’s life. A parent does not have to have physical custody to have legal custody.

Physical custody determines where a child is going to live. Custody can be granted to a single parent with other being granted regular visitations, or “parenting time.” Joint Custody can be granted where the child splits their time between both parents. Even in a joint custody situation, parenting time is never split 50-50, so the parent that has custody for the majority of the time is considered to be the custodial parent.

This post isn’t getting into the situations where one parent might have mental health issues or a history of violence, which would lead to a parent not being granted any time or only supervised visits. For our example here, we are going to assume both parents are willing and capable of parenting their children.

The “best interests of the child”

In New York, judges have wide latitude to determine what is in the best interests of a child. To understand what that means, we have to define what “best interests” means. While there is no standard definition of “best interests”, in general it refers to the factors that a judge considers when deciding what the best decision will be that will protect the child’s physical and emotional health and safety. The courts will work to allow a child to have a healthy and happy relationship with each of the parents while creating as stable as an environment that can be granted.

While the courts have final say, the courts do not have to make custody decisions in every case. In many cases, parents, either working through a mediator or with their attorneys will work out issues of custody and parenting with by drafting a parenting coordination plan. If parents are unable to come to an agreement, the courts will then have to step in to decide.

Children can testify, but courts like to avoid it

One of the many factors that a judge can take into account in deciding custody is the child’s preference, though the judge is not required to use the child’s preference in rendering a decision. In most cases, judges do not split children between parents, however, there have been cases where teenage children had each shown a preference for different parents and the court granted their request.

While a child is able to express their opinion regarding preference many judges are hesitant to allow a child to state a preference. So save the child the stress of testifying in court, children will testify “in camera” in the judges chambers where the attorneys are not present. Testifying puts the child in the middle of a custody dispute and can cause damage to the relationship between the child and the parent.

Custody Evaluations

A custody evaluation is an assessment conducted by a mental health professional to determine what is in the child’s best interest. An evaluation takes place over a period of time when the evaluator will interview both parents and the child where the child may state their preference as to custody without alienating either parent or creating awkward or angry feelings. The evaluator will also observe the interactions between the parents and child.

Other things done as a part of the evaluation are psychological tests, interviews with others who have relationships with the children, such as teachers and doctors, and a review of documents such as school records or police reports.

An evaluation can be requested by either parent, or an attorney who is representing the child’s interests. The evaluation can also be requested directly by the court.

An evaluation can be done based on issues such as concerns related to domestic violence, substance abuse, mental illness, or questionable parenting skill. An evaluation can also be granted simply due to an ongoing dispute related to custody.

Once the evaluation is completed, a confidential report is prepared the sent to the court with their determination and recommendations. The law does not require the judge to make the final report available to parents or their attorneys. In these cases, the evaluator may be asked to testify as to the contents of the report in court.

When the evaluation is complete, it is one of the main factors a judge will use to render their final decision related to custody and visitation.

A divorce is a very stressful time, especially when there are issues related to custody of children. Going through a custodial evaluation can also be a very stressful experience for everyone involved. If you have questions about custody or a custody evaluation, call the Law Office of Anthony LoPresti. We offer free consultation for new clients. You can reach our office at 516-252-0223.