By Melanie C. Phillips

Contrary to popular belief, there is no set age when children can testify and express their wishes for their living arrangements in a custody case. Rather, the court decides whether the child is of a “suitable age and discretion” to testify and express their wishes before the judge.   The judge will consider the child’s age and maturity level.  A major factor in determining the child’s competence is whether the child has the ability to understand the difference between a truth or lie.

If a child testifies, the attorneys typically will agree for the child to talk with the judge privately “in chambers” (the judge’s office) instead of in the courtroom in front of the parents.   Keep in mind, however, that even if the court determines that the child is of a suitable age and discretion to testify, the court has the discretion to decide what weight will be given to the testimony.  A court is not bound by the child’s wishes–regardless of the age of the child.

By Melanie C. Phillips

Having to go to court to fight for your children may very well one of the most difficult things a parent ever has to do. The emotional, physical and financial toll of a custody lawsuit is not to be taken lightly and is often exacerbated by the fact that people in the midst of custody litigation have often just ended a marriage or significant relationship. While the circumstances in every custody case are unique, and there is no exhaustive list of things to do or not do, as an experienced family law litigator, I can say that in almost all cases, the following things won’t curry you favor with the judge:

1. Play pass the baby. When you don’t have a custody order or parenting agreement in place, there isn’t much you can do to force the other parent to abide by what you believe to be a reasonable custody schedule. That being said, if your child’s mother or father is not allowing what you believe to be the appropriate schedule, now is not the time to show up at the other parent’s home (or the child’s school or daycare), forcefully take your child, and keep them all to yourself until your court date.  Indeed, I have seen parents play pass the baby for weeks or even months at a time, grabbing their child when they can and keeping them until the other parent takes them back. Don’t do this.  Your child is not a pawn, and children are the ones who suffer the most in these types of situations.
2. Pick up a drug or drinking habit. Following the stress of an ending marriage and all that comes with having to start a new chapter in your life, it can be helpful to seek out healthy outlets such as group or individual therapy, exercise, and exploring hobbies you might enjoy. While it may be tempting, turning to drugs or alcohol is never a good idea. If evidence is presented at trial that suggests your child may be in danger while with you, a judge is going to have serious concerns about you spending time with them unsupervised.  Along the same vein, if you have a drug or alcohol problem, please get help immediately, for both you and your child.
3. Move in with your hot new girlfriend (or boyfriend) of one month. No explanation needed, particularly if you intend to have overnight visits with your child. Don’t do this.
4. Talk to your child about money, the divorce proceedings, and how terrible your ex is. A child should not be placed in the middle of an adult problem. This is what friends, therapy, and your attorney are for.  Moreover, in my experience judges like to see a parent who encourages a child’s relationship with the other parent, not try to tear the other parent down.  Take the high road.
5. Post anything on social media you wouldn’t want to be exhibit A at your custody trial. This includes pictures of you at that rave, long rants about your ex, pictures of your gun collection, and the like.