How Does a Judge Decide if A Child Can Testify in Court?

Posted on July 7th, 2021

Divorce can hit the hardest on the children. The younger they are, the less they are able to understand what’s happening, and they have even less control over the situation than either parent. A child isn’t even guaranteed the right to testify, a judge decides if they can based on a few factors, similar to the process they use to determine child custody. Even if they do grant that child the chance to testify, they typically will not in the courtroom. They will testify in the judge’s chambers, with only the attorneys of the parents as witnesses. Neither parent may be in the room.

A child cannot decide what parent they want to live with until they are 18. At this age, they become an unemancipated adult and can live where they’re allowed or can afford. There have been few instances of a child younger than 18 legally and physically emancipating themselves from their parents in this country. In Pennsylvania, there is no legal way for them to be awarded emancipation, so much that the court may recognize that a minor has become emancipated. So, for now, the child must settle for the chance to testify, if the judge allows it.

What factors does a judge look at?

There are several factors that a judge must consider to decide whether a child can testify about which parent they prefer to live with. There is no set age where the judge should or shouldn’t consider allowing a child to testify. 

  • Child’s age: How old the child is is important. A young child, younger than 7 or 8, may not even understand what’s happening. It wouldn’t make much sense to have a child testify when they aren’t informed or of sound mind. Either parent could challenge the testimony on good and fair grounds.
  • Child’s maturity: Maturity can make up for or detract from a child’s age. It would be unfair and untrue to say that all children are the same. There are young children with the maturity of children older than them, and older children with the maturity of someone younger. When a child can demonstrate a mature level of understanding, a judge may be more likely to hear their testimony.
  • Child’s intelligence: A child’s age and maturity don’t necessarily mean they understand what is going. Being calm about a situation and reacting appropriately doesn’t mean the child understands their circumstances. At the same time, an emotional reaction can be because they have high intelligence and understand what’s happening. This could make their testimony all the more important, despite a young age or low level of maturity.
  • Child’s preference: A child’s preference in itself doesn’t affect whether they can testify, but if they have a clear preference for a parent accused of parental alienation. If a child’s preference seems abnormal and unjustified, a judge may dismiss their preference because they have been manipulated by one parent or another adult.

Contact a family law attorney who knows how judges think. Contact Kalinoski Law Offices.

A judge is a respectable and highly valued position in law. We have to trust them to make fair and informed decisions that better society. You need a lawyer who can help prove to a judge why your preferred child custody is the best for your child and your family. 

Contact Kalinoski Law Offices today for an attorney who is dedicated to representing you and getting you your achieved child custody.

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Craig Kalinoski
Craig Kalinoski

Craig P. Kalinoski is a respected attorney serving clients in Scranton, Pennsylvania. With a focus on Family Law, Criminal Defense, and Civil Rights, he has established himself as a top-rated legal professional. Recognized as a Rising Star and admired by peers, Craig's commitment to excellence sets him apart in the legal field.


We fight for the rights of our clients in a wide spectrum of practice areas, ranging from criminal defense to family law and personal injury.

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