Child preparing to provide evidence to an attorney

When is Children’s Testimony in Court Allowed?

Family law matters can be difficult to navigate when children are involved. Not only are you worried about your own physical, mental, and emotional well-being throughout the process, but also that of your children.

If you are involved in a family law dispute, such as a child custody matter or even an adoption, you may want to know if Texas courts will ever require children’s testimony in court.

It is a very rare occasion for a child to be asked to take the stand and testify in court. You could think of it as a last resort if a judge is unable to arrive at a decision acting in the child’s best interest.

Learn more about when your child would be asked to testify in court and when this would be allowed according to Texas law.

Are Children Ever Allowed to Testify in a Family Law Case?

The Texas Family Code states that a child may be allowed to testify in court if they are over the age of 12. There are very rare situations where a child under the age of 12 is allowed to testify if a judge determines he or she is emotionally capable of providing evidence or if their testimony is crucial for making a ruling.

The most common situation in which a child is asked to testify in court is during child custody cases if the child is 12 years or older. The judge may want to hear directly from the child on which parent they prefer to live with. This way, the judge can better understand the familial situation and the child’s needs to make a proper decision.

We want to stress that this type of situation when a child is asked to testify in court is not typical. However, if your case reaches the point where your child is asked to provide testimony in front of the court, our helpful team of family law attorneys will ensure a smooth process so that your child does not have to endure additional difficulty during the family law matter.

Most commonly, the child may be asked to “confer” with a judge to gather more information and to avoid having to take the stand.

Confer: What You Need to Know

When a request is made for the judge to confer with the child, if the child is over the age of 12, the judge must handle this aspect of the legal proceedings. If the child is under 12, it is discretionary to the judge and they can choose to schedule a conference or not to do it. When the child is over 12, they have no choice.

If a confer is granted, the judge will schedule a date/time for the child to be brought to the courthouse. At the courthouse, the judge will bring the child into their chambers. If an attorney has been appointed to represent the child, they will be allowed into the conference with the child.  

Once in chambers, the judge will have a conversation with the child.

  • This conversation is on the record, so the court reporter is often the only other person in the room with them.
  • The conversation will focus on the child’s preferences, if any, for who they would like to primarily live with.
  • The discussion will also include the visitation schedule and any other issues the child wants to discuss.
  • Sometimes, the attorneys will give the judge topics of concern to ask the child about, but this doesn’t always happen.

Once the conference with the child has concluded, the judge can use the information gathered during the conversation to make any rulings about custody, visitation, etc. However, it’s up to the judge to decide how much weight to assign to the information provided by the child when making a decision based on the other facts at hand.

Even though a record of the conversation with the child is made and can be requested by the attorneys (or sealed by the court), it is not considered testimony because the child is not subject to cross-examination.

Overall, consider these key pieces of information about the conference process that may affect your family’s situation:

  • The conference between a judge and a child is not testimony. It’s not admissible in court, and the child is not subject to cross-examination.
  • The court must confer with a child over the age of 12 regarding which parent that child wishes to live with on a primary basis.
  • The court may confer with a child (over 12 or otherwise) regarding possession and access.
  • The court may confer with a child under the age of 12 regarding which parent that child wishes to live with on a primary basis.
  • A child will never be asked to sign a statement in a custody dispute.
  • Only in adoption cases will a child over the age of 12 file written consent to the adoption.

How Children Are Called to Court

If your situation does lead to a child being called to give testimony in court, there are standard procedures involved. Usually, one side in a family law dispute requests testimony from the child. The judge will determine whether this is a good idea and whether it’s necessary or helpful to advance the case.

Like other types of witnesses, one of the child’s parents may receive a subpoena — an order to appear in court. The subpoena is served on the parent since it is the parent’s responsibility to ensure the child attends.

The judge may provide specific provisions surrounding the child’s court appearance, including which parent is responsible for taking the child to court.

However, it’s important to note that parents should not talk to their child about the legalities of the case. Generally, only judges talk to the child about legal issues. So, it’s important for parents to try not to influence their children before they speak in court.

What Makes a Child Competent to Testify in Court?

Competency is critical to a child’s testimony. Child competency is often misunderstood, as it has nothing to do with a child’s sanity. It refers to the child’s age, intelligence, and reliability as a witness.

Historically, child witnesses have been deemed unreliable, which is why children’s testimony in court is a rare occurrence. Under the Texas Rules of Evidence, a child who lacks “sufficient intellect” on the subject matter is deemed incompetent. In other words, if a child does not know about the subject, they cannot testify about it.

Certain details help determine whether a child would be competent enough to testify in court, including:

  • The child’s age (is he or she over the age of 12?)
  • The ability to intelligently observe specific events when they occurred.
  • The capacity to recollect events.
  • The ability to share their observations, including the capacity to understand questions as asked, form proper answers, and understand the need to be truthful.

Preparing for Children’s Testimony in Court

Appearing in front of the court can be scary for a child. Therefore, it’s particularly helpful for the child to be prepared well in advance if a judge decides they should testify.

One of our attorneys can meet with your child to give them an idea of what to expect. Discussing the whole process from beginning to end can help lower stress and anxiety so that the child is not surprised by anything on the day of their testimony.

Additionally, an attorney may even take the child to the courtroom beforehand so they can become familiar with their surroundings before their court date. Children tend to do much better when they’re prepared for what’s to come.

Go Local to Choose an Attorney Who Works With Children

Putting a child on the stand can be a very stressful situation. Our caring team of local family law attorneys knows how important it is to protect your child’s interests, which is why we will do everything in our power to ensure all options are considered before your child has to testify.

We have a deep understanding of the Texas family court system in the local counties where we practice family law. We will work hard on your behalf to protect your family and your child. And, if a judge requests children’s testimony in court, do not fret. When you work with us, we will aim to make the process as simple as possible.

The seasoned team at Parker & Aguilar knows what you’re experiencing. We work closely with families in Fort Bend County, Brazoria County, Galveston County, and Matagorda County on cases that involve children.

If you reside in one of these counties, contact our Angleton office at 979-267-7660 or our Sugar Land office at 281-944-5485 to speak with a family law attorney about your case. We will provide exceptional care and support when applying the law to your legal situation. Let’s get started today.