In this article, we’ll discuss if a child can be forced to testify, what evidence is needed in order to avoid a child testifying and when testifying may not be in the child’s best interest.
Custody cases can be extremely emotional for all parties involved, but the emotional and psychological toll on the child is not always obvious. Having to testify can compound that stress significantly. Thankfully, the court system is set up in such a way as to minimize the direct involvement of the child in the hearing process.
The overarching goal of the Illinois Marriage and Marriage Dissolution Act and the Juvenile Court Act in regards to children is the protection of children’s best interests before the court. The child custody case should proceed “in a spirit of humane concern, not only for the rights of the parties, but also for the fears and the limits of understanding of all who appear before the court,” according to 705 ILCS 405/1-2(2). What this means is that the court will typically make whatever decision in requiring child testimony that is within the best interests of the child first and the other parties involved second. However, according to the Juvenile Court Act a child cannot be forced to testify and any refusal by the child to testify cannot be met with legal action, even if opposition from one or more legal age parties exists. For example, an Illinois court can rule that a father’s due process rights were not violated when refusing the father’s attempts to compel a child to testify. There are ways that the court can obtain the information needed without court testimony from the child, but certain scenarios necessitate that testimony.
What Evidence Will the Court Consider in Place of Courtroom Child Testimony?
The Illinois Marriage and Marriage Dissolution Act allows the child to be interviewed by the judge outside the courtroom, provided the four guidelines for the interview are met:
- The judge only interviews the child, not the parties involved and the involved parties will not be present;
- The interview must take place in the judge’s office;
- In order to ensure a fair interview, the attorney’s for both parties must be present; and
- A court reporter must be present to record the entire interview so that the recording of the judge’s interview can be used at the custody trial.
Not all evidence gleaned from a child’s out-of-courtroom testimony is treated equally. While it’s likely that the judge will take into account the general opinion of the child and the information the child gives during the out-of-court testimony, if accusations of abuse or neglect are involved sustaining the burden of proof may be impossible without in-court testimony. The out-of-court statement from the child can still be admitted as evidence, but some other evidence corroborating the child’s claim of abuse or neglect may be necessary to sustain the court’s ruling.
The bar for what the judge can use in her ruling differs depending on what hearing is taking place. While a child’s hearsay statement is admissible without corroboration at the temporary custody hearing, the Illinois courts have required that the out-of-courtroom testimony be corroborated by some other evidence, or the cross-examination of the child take place at the adjudication hearing. For example, if the child alleges sexual abuse or neglect prior to the temporary custody hearing (or shelter care hearing) without immediate corroboration to back up the claim, the judge will likely rule the child be removed from the home and placed in temporary custody until the adjudication hearing. At the adjudication hearing, if no other evidence is brought forward the child’s original statement will not be enough to sustain a finding of abuse or neglect, but if a pediatrician and/or another physician find evidence that corroborates the child’s statement the finding will stand. Furthermore, in the case of sexual abuse, the court may also accept that a child’s age-inappropriate detailed knowledge of sexual matters and evidence of the child’s age-inappropriate sexual behavior corroborate his or her out-of-courtroom statement.
When Testifying Is Not In the Best Interest of the Child
While a case may require in-court testimony from the child in order to sustain findings of abuse or neglect, it may not be in the best interest of the child to subject herself to direct and cross-examination. This is not a black and white decision and often falls to the guardian ad litem (GAL) to make that determination. Factors the GAL should consider when determining whether the child should testify include:
- How does the child feel about testifying? If the child is very much against the idea or appears extremely agitated her testimony may do more harm than good for the case.
- Does the child’s therapist feel that providing testimony may be traumatic for the child and affect the child’s functioning?
- What are the opinions of the child’s caseworkers, foster parents, relatives, etc?
- Do the specifics of the case make it simpler for the GAL to state the child’s wishes and point of view to the court?
If it is determined that it is not in the child’s best interests to testify in court, evidence supporting that decision (preferably from a medical professional) should be presented along with the other relevant arguments. Alternatives in this situation include hearsay testimony in post-adjudicatory proceedings and testimony from other witnesses as to what the child may say if asked the same question. If the child does end up having to testify, there are a number of steps the guardian ad litem should take in order to prepare the witness.
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