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.
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