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Children Testifying in Custody/Visitation Cases

A question often asked in a custody/visitation matter is: "How old does my child have to be in order to tell the judge what he/she wants?" The simple answer is that there is no minimum age requirement. Virginia law expressly provides that any child, who is of reasonable age, intelligence and experience, is deemed to be competent to testify as to his/her preferences regarding custody or visitation issues. Of course, the amount of weight that the presiding judge is likely to give such testimony will tend to increase with the age of the child witness.

It must be recognized, however, that there are potential risks in having a child testify at a custody or visitation hearing:

1. The vast majority of judges do not particularly like having a child testify in what is perceived to be "against one parent, and in support of another." The parent who insists on presenting his or her child as a witness in court, runs the risk of incurring the wrath, or at least the displeasure, of the presiding judge;
2. It can be emotionally traumatic for adults to testify as witnesses in a court hearing. One can only imagine the emotional damage being incurred by a young child appearing in court, and testify in a battle between that child's parents; and
3. Even a moderately-skilled attorney can be able to confuse a child on cross-examination, thereby getting the child to say something that is either not accurate, or not what the child truly intended.

Lastly, you must keep in mind the very real fact that no judge is going to cede his/her decision-making authority to a child. While the child may be allowed to state his or her preference, that is all it is, a mere "preference." The judge will consider such preference, together with the rest of the evidence, in ruling on issues of custody or visitation.

If you should have a question about custody or visitation, contact one of the attorneys at Duff Kronfeld & Marquardt P.C. for a complimentary, 30-minute telephone consultation at (703) 591-7475.

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Duff Kronfeld & Marquardt P.C.
11320 Random Hills Road
Suite 630
Fair Oaks Commerce Center
Fairfax, VA 22030

Phone: 703-591-7475
Fax: 703-273-4537
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