Should a Child be a Witness in ...

Should a Child be a Witness in a South Carolina Family Hearing?

On occasions it's useful to find out the views of a child in a family proceeding in South Carolina, a scenario which could involve the child testifying in court.

However, this is a sensitive area. It can be an ordeal for a child to be a witness, particularly if the child feels he or she is young or is being forced to make a choice between parents.

Notwithstanding the pertinent issues, a child's opinion is an important part of the process. Under Section 63-15-30 of the South Carolina Code of Laws "In determining the best interests of the child, the court must consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference."

In deciding whether a child should testify, a Columbia child custody attorney, should weigh up a number of factors including:

  • The child's requirement or desire to testify;
  • How significant the child's testimony will be for a case;
  • The age of the child in question;
  • The child's ability to withstand a potentially stressful cross-examination;
  • The developmental ability of the child who is testifying.

If a child is too young he or she will not be called to testify. Children under the age of three are not called as witnesses and it's very uncommon for a four-year-old child to take the stand as well. Young children have a significant problem in articulating their thoughts and wishes into coherent statements that are needed for a judge to properly assess their testimony, and their opinions may be changeable.

There are other significant problems with testimonies from younger children. They may be unclear about the timing of events, their recollections may be unreliable and they get confused easily. However, children of a tender age may be required to testify if no other individual is able to testify to certain events.

The Credibility of Child Witnesses

In family matters as well as criminal proceedings, a judge may put more weight into the recollections of a child than an adult because children are less likely to fabricate evidence. However, a confused and muddled testimony will rapidly discredit a child witness.

In cases in which visitation or custody is contested, a court may appoint a guardian ad litem to represent children and the parties. The guardian ad litem will investigate the contested custody issue and is charged with representing the child's best interests in the proceedings.

The one guiding principle in child custody cases in South Carolina is the best interests of the child. No parent has an automatic right to custody or visitation. It is vital to have a proven Columbia divorce attorney on your side to defend your ability to maintain your role in your children's lives. Call Masella Law at 803.938.4952.

Categories: Divorce, Child Custody

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