Child Testimony in Custody Cases
A question that often arises in custody disputes is whether the child’s preferences are considered by the court. Certainly, the parents will have their own opinions regarding custody and visitation. The reality is that many children also have a preference as to who they want to live with after a divorce and how often they want to visit the non-custodial parent. But will the court consider the child’s preferences? Many states require the court to take testimony from the child during custody proceedings. In Alabama, it depends.
The basics of child custody in Alabama
In cases where parents are unable to agree on child custody terms, the judge will make that decision for them. In Alabama, courts are required to give custody to either the mother or the father in the case of a divorce. In deciding on which parent should have custody, or whether custody should be joint, the legal standard is the best interest of the child. This would include the child’s safety and well-being, the child’s age and gender, and child’s emotional, social, and moral needs. The court will also consider each parent’s home environment, age, character, stability, and mental and physical health. There are many other factors.
When a child’s preference is considered in Alabama
When the child involved is mature enough to articulate an informed opinion, the court will consider the child’s preference. There is no specific age at which an Alabama court must consider the child’s opinion. Instead, courts make that determination on a case by case basis. The child’s opinion may not control the judge’s decision, but it can weigh heavily.
Courts consider the child’s underlying reasons
When the court considers a child’s preference, it will also consider the reasons for that preference. For example, if the child is merely angry with one parent for disciplining the child, then the preference may not be given much weight. If, however, the child describes a better relationship with one parent or that one parent has been providing most of the care, the child’s preference would likely be given more weight. Regardless, the best interests of the child will always prevail.
Will the child testify in court?
Alabama law discourages requiring a child to testify about custodial preferences in court. Most often, the child is brought into a judge’s chambers to testify in front of the parents’ attorneys, but not in the parents’ presence. Both parents must agree to the judge speaking with the child directly.
If you have questions regarding child custody, or any other family law matter, contact us online or by calling Brad J. Latta at (205) 401-1309.