Family law attorneys often get asked: “can my child testify during the hearing?” In North Carolina, the statute (N.C.G.S. 50-13.2(a)) only states that every decision by the judge shall “best promote the interest and welfare of the child.” Therefore, family law attorneys must look to case law as to whether a trial judge can consider the testimony of a minor child.
In the case Mintz v. Mintz, 307 S.E.2d 291 (N.C. App. 1983), the court held that a trial judge may consider the preferences or desires of a child in a custody case. However, the child must be a competent witness, meaning they must be of suitable age and discretion. Therefore, a child may only testify if the judge determines the child is mature enough. There is no magic age. Although the judge may consider the child’s decision as to which parent they would rather live with, the judge is not required to follow the child’s wishes.
Before calling a minor child to testify in a custody case, you should consider the effect it could have on the parents and child as it can often be emotionally traumatic for everyone involved. Also, one should be familiar with how the judge feels about children testifying and whether the judge will hold it against you for bringing a child to court to “choose” between parents.
This post is provided for informational purposes only, and is neither intended as legal advice, nor does it establish an attorney-client relationship. To speak to an attorney, contact Dugan & Leger, PLLC at 910-253-5400.