In Davis v. Lake, a father alleged his ex-wife moved their two minor children out of the country in violation of his custody rights. In response, the ex wife proved the father actually had consented to the kids leaving the country before the removal occurred in the first place. This lawsuit fell under the Hague Act – a federal statute that, in part, addresses when former spouses illegally take their children to other countries. The statute has an “age and maturity” exception, where children under the age of 18 can choose whether they want to live in the United States or out of the country with the other parent if they can show the court that they have attained a certain level of age and maturity. The children in this case were 11 and 9 years old. The 11 year-old testified that she wished to stay in Virginia and, based on her age and level of maturity she demonstrated while testifying, the court determined she fell within the “age and maturity” exception of the Hague act. Accordingly, the court honored her wishes based on her testimony at trial and ordered she be kept in the United States with her father. The 9-year-old was also permitted to testify, but he did not show the requisite level of age and maturity for his testimony to be given legal weight under the Hague Act. Even so, his testimony was also that he wished to stay in the United States, and the court ended up ruling in his favor anyways.
Courts have discretion to decide whether to allow children to testify in court, but as a general rule, children 13-years-old and older will be allowed to testify with little issue. Courts will look to the age, maturity, emotional state, relevance of potential testimony, necessity of testimony, parental influence, and the protection of the child when determining whether to allow them to testify.
Even if the court ultimately decides not to allow a child to testify, judges will often bring the child into their chambers to speak with them in a more personal, less intense environment – this is called an “en camera” interview. In a judge’s chambers, there are no reporters or attorneys allowed, but a child will be allowed to have their guardian ad litem present. Smith Strong is very cautious to involve children in custody disputes, however, when rarely used, our strong preference is for en camera interview so the parents cannot retaliate or hear what is said to the judge.
Smith Strong will often use en camera interviews of children if the child is able and willing to speak, and also in certain situations where the guardian ad litem is not known to be a strong advocate for the child’s welfare. En camera interviews can provide valuable insights into a child’s wishes and needs, which can help ensure that the court’s final decision is in the best interests of the child. At Smith Strong, we believe in using every available tool to protect the rights of our clients and to promote the well-being of children involved in court proceedings.
We also offer a free e-book on navigating the Divorce and Custody process in Virginia. For your free download, visit www.smithstrong.com/reports.
Special Thanks to Brayden Meadows for his assistance with this article.