Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Should Children Testify About Where They Would Like To Live After The Divorce?

The other day, my husband and I discussed two family situations we have observed over time. Each had strained relations between husband and wife and a child very unhappy with where they lived. One has been resolved happily, while the other continues to fester with the distraught child developing a multitude of problems.


The positive outcome resulted from a decision to allow the child to move in with her favorite aunt while her parents sorted through their various difficulties. Only 12 when she moved, the girl thrived in the new environment… so much so that with all parties agreeing and the child most enthusiastically, the girl was formally adopted by her aunt and uncle three years later.


In the other family, the difficulties have worsened. The parents divorced and the child, then 10, was assigned by the court to live with his mom, while allowed to visit his father regularly. Although mom and dad both love the boy, and each in their own right is a quite competent parent, they are radically different in their approach, and unable to agree on a common style that would provide consistency to their child.


As it often does, the court decided that it was in the “best interests of the child” that he reside primarily with his mom. The boy, though, clearly wants to live with his dad and has become increasingly difficult to deal with at home and in school.


As my husband and I were discussing this boy’s situation, my husband asked, “Did the court ever ask the kid where he wanted to live?”


In this case, as in many others, the court did not. Family court judges are loath have children testify as to their living preference. As one judge said to me: “Don’t even think about bringing the kids into court.”


With the best of intentions, judges tend to be very protective of children, believing that testifying in court, or even being interviewed in chambers by the judge, about the divorce of one’s parents can be too traumatic. Judges recognize, quite correctly in many situations, that the children are subject to a lot of manipulation by mom and dad as each seeks to win the child to their side. Such manipulation would surely worsen if it were likely that the children were going to be called to the stand.


Judges can also be concerned about the reliability of child’s testimony. Have they been coached by the parents? Do they understand the difference between truth and falsehood? Will they be afraid to testify truthfully if their parents are present?


By statute, children are permitted to be witnesses as to their custodial preferences if they are “competent” to testify accurately and truthfully. In Missouri, children 10 and over are presumed competent and automatically entitled to testify, while children younger than 10 if demonstrated to be competent may also give testimony.


Even so, there have been many cases where the judge has prevented a “competent” child from being heard. The law also permits the judge to interview a child in chambers with only the lawyers present, but not the parents, as to their desires, yet judges have demurred from even doing that.


When these cases have been taken to the Missouri Court of Appeals, the appellant court has given wide latitude to the trial judge to determine if a “competent” pre-teen child will be heard. However, for children 13-14, trial courts have been directed to at least interview the child, while for children 15 and above, the appellant court has ruled that these children must be allowed to testify.