Can Children be Called as Witnesses in a New Jersey Divorce?

If you are contemplating a divorce or if your spouse has filed for a marriage dissolution, you certainly have an array of questions. For example, you may have questions about the role your children might play in divorce proceedings. These may include wondering whether or not your children can be called as witnesses in a New Jersey divorce. There are a number of considerations that come into play in regard to the matter of a child witness in divorce cases:

• Type of issue raised in divorce case
• Age and maturity level of child
• Reason for presence of child in courtroom
• Alternatives to child witness in courtroom
• Need for a guardian ad litem

A primary consideration when it comes to child witness in divorce cases is what type of issue is being raised. In other words, a court will not permit child witness testimony if it does not involve a material issue in the proceedings, Examples of these types of material issues more often than not involve child custody or parenting time. Ultimately, the court will make the determination that a particular material issue cannot be appropriately resolved without obtaining information from a child in the form of testimony.

When a child is called to testify in divorce court, age and maturity are key considerations. Generally speaking, in a New Jersey divorce case, a judge contemplates the biological age of a child together with whether or not the minor is sufficiently mature to understand the significance of testifying in court. The court takes into account the individual circumstances of each case when determining whether or not a child meets these criteria. The primary purpose of having a child testify in court is to ensure that any decisions made reflect his or her best interests. The best interests of a child standard governs all aspects of judicial decision making in a New Jersey marriage dissolution case.

In considering whether or not child witness in divorce cases is appropriate or necessary, a judge considers whether or not a child’s presence in the courtroom for testimony is absolutely necessary. As will be discussed in greater detail in a moment, a court contemplates whether another alternative to in-court child witness in divorce cases will meet the interests of justice in a specific New Jersey marital dissolution case.

There are ways in which information can be obtained from a minor short of a child witness in divorce cases actually testifying in open court. These include a presiding judge having what technically is called an in camera question and answer with the minor child. This basically is the questioning of a child in the judge’s chambers with legal counsel, a court reporter, and both parents (or spouses) being present.

Thanks to the significant technological developments of recent years, it is also now possible to have a child at another location to ask questions in divorce proceedings. In other words, if the circumstances permit, a child might even be able to remain in the comfort of his or her own home and respond to relevant and appropriate questions put forth using technology like Zoom. Indeed, this type of technology is becoming used with far greater frequency for a range of different matters and purposes in New Jersey court proceedings, including marriage dissolution cases.

Finally, when it comes to the matter of child witnesses in divorce cases, the court may be required to consider whether or not a guardian ad litem needs to be appointed to represent the interests of that minor during the proceedings. A guardian ad litem is a court-appointed representative that looks out for the best interests of a minor or an individual who has been declared incapacitated. A guardian ad litem investigates situations, gathers evidence, and makes recommendations to the court on behalf of the minor or incapacitated person. The role of a guardian ad litem is to provide independent, impartial information and representation to the court on behalf of the protected person. If you have any questions about family law, call (201) 845-7400 for consultation.