Most people’s main concern when they come to our office for a divorce consult is what will happen with the children and how the divorce process will affect the children. We hope to make the process easier for you, but also make the transition easier on the children. When it comes to children, we not only worry about custody, but whether they will have to be in the courtroom, or even testify.
The best interest of the child is the standard used for determining custody of minor children, but it is also used as a sort of determiner for whether the child should testify. The first issue when determining if a child will likely need to testify is how old the child is. Courts are hesitant to allow young children, even as old as 13-14, to testify. The idea behind this hesitation is that children shouldn’t be needlessly put through the court process and that a child should never have the burden of determining which parent they will live with long term. That is a burden that the courts put on the parents and, if the parents can’t decide, that the court will take on themselves. As such, if you have a child under the age of 13, it is fairly unlikely that they will need to, or even be allowed to, testify.
Often, if the child is not of a sufficient age to testify, we will ask that the children do not come to court with you. The courtroom is not a place for children, unless they have to be there. Sometimes though, in more intense custody cases, the Court will Order the child to be present, in the event the court wishes to interview the child. This situation is one that can cause stress to the child and the parent, however, our goal in these cases is to make it so that the child doesn’t have to testify and is able to wait in a waiting room, outside of the actual courtroom. If the child does have to testify, it is typical for the judge to call the child into their chambers and have a sit down conversation with usually just the judge and his court clerk.
Divorces don’t only occur with young children, however. If your child is high school aged, then they may be able to testify. Kansas law sets the choice of a child, of sufficient age, as one of the many factors in determining the best interest of the child. If your child is of sufficient age and wishes to testify, you should inform your attorney of that in your initial consult as the attorney will want to have a discussion with the child. It is important to remember though, the child’s choice is one of many factors, so the court has the authority to disregard a child’s choice if they feel staying with the other parent is in the child’s best interest.
Divorces, of course, are not easy on children. However, the State of Kansas, and we at Seaton, Seaton, and Dierks, L.L.P., have taken purposeful steps to help make the process and transition easier on the children, and less stressful on you. If you have concerns regarding your specific child testifying or being present in the courtroom, please don’t hesitate to ask your attorney about it.