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Attorney Milena Nowicka
When can your child act as a witness in divorce proceedings?
A child as a witness in a divorce case – age restrictions apply
Hearing a child in divorce proceedings – when it is important for their future
What is the difference between examining a child as a witness and hearing a child?
How to appoint a child as a witness in divorce proceedings
What does the court consider when assessing a request to examine a child in a divorce case?
What questions may the court ask a minor witness?
Does your child have the right to refuse to give testimony?
How can you protect your child during divorce proceedings?
Why is it worth seeking the assistance of a lawyer in divorce cases involving children?
Divorce is a difficult time not only for spouses but also for their children. Many people wonder whether a court may examine a child as a witness and what such a situation looks like in practice. It is natural to want to protect your child from stress while at the same time fearing that, without their voice, the court may not gain a complete picture of the case. In this article, we explain when your child may testify and how to safeguard the best interests of a minor.
The law distinguishes between two different ways in which a child may participate in divorce proceedings. These are often confused, so we will begin with a brief explanation.
Your child may not be examined as a witness in the divorce proceedings of their parents if they are under 17 years of age. This rule is absolute and allows no exceptions. This means that even if your 16-year-old child is very mature and wishes to testify, the court may not examine them in the capacity of a witness.
A completely different situation arises when a child is heard on matters that directly concern their life. The court may hear a child who is at least 13 years old in cases concerning, among other things, parental authority, place of residence, or contact with a parent. Such a hearing often takes place in the presence of a psychologist, outside the courtroom, and without the presence of the parents.
Examining a child as a witness means that your son or daughter is subject to the obligation to provide truthful testimony. Such an examination may concern past facts and is conducted in accordance with evidentiary rules. As already mentioned, it is subject to an age requirement – in divorce cases, the minimum age is 17.
By contrast, hearing a child consists of the child expressing their views and preferences regarding their future, and such a hearing is consultative in nature. For this reason, it is possible at a younger age (from the age of 13, and in exceptional cases even earlier, if the court deems it appropriate).
Your child may be examined by the court only if one of the spouses submits a motion to that effect. It is the parties who are required to indicate evidence, and the court then decides whether to admit it in the case.
The mere wish of one party does not mean that the court will automatically agree to examine the child. The court always considers the best interests of the minor and may dismiss such a motion.
In theory, the court also has the right to admit evidence ex officio, that is, without a motion from a party. In practice, however, this happens very rarely in divorce cases, as it is primarily you and your former partner who are responsible for submitting evidence.
Remember that it is you who play the decisive role in whether the issue of the child’s participation in the proceedings arises at all.
If you would like to learn more about appointing witnesses in divorce proceedings, you can find a separate, dedicated article on this topic on the blog.
The court always verifies whether the child’s participation as a witness would cause harm or expose them to trauma.
The most important criteria include:
If your child has health problems, is experiencing the divorce very intensely, or could be subjected to excessive stress, the court will most likely not allow their examination.
The court also considers whether the child is mature enough to understand the situation and express their views in a clear and communicative manner. For this reason, in practice, courts often seek opinions from specialists in this area, such as psychologists or expert witnesses.
In family law, the welfare of the child is always the priority – the child’s health and emotions are more important than a swift resolution of the case.
The court seeks to establish the truth but always acts with the child’s best interests in mind and does not expect the child to take sides between their parents.
Accordingly, the court may ask, for example, whether the child witnessed arguments between the parents, whether they felt threatened at home, and what the family’s daily life looked like. It may also seek to establish with which parent the child feels safer, how contact with each parent has taken place so far, what the child’s everyday needs are, and what support they receive from their parents. The specific questions asked by the court will, however, depend primarily on the circumstances of the individual case.
Yes, a child has an absolute right to refuse to give testimony.
However, please remember that if your child is appointed as a witness and the court agrees to conduct the examination, they are formally obliged to appear in court. Nevertheless, they may refuse to testify if they do not feel able to do so or do not wish to speak about family matters.
At the beginning of every examination, the court explains the child’s rights, asks about their willingness to testify, and informs them that they may refuse at any time. If the child decides that they do not wish to testify, they may leave the courtroom and will not be required to provide any information.
Being summoned for examination can be extremely stressful for a child. To provide support, you should first and foremost explain what will happen in court – what the courtroom looks like, how the examination is conducted, where the child should stand, and similar practical matters.
You should also reassure the child that they will have your support. Under no circumstances should you attempt to manipulate their testimony or encourage them to say what you want to hear.
If a child may participate in your divorce case as a witness or is to be heard by the court, it is strongly advisable to seek the assistance of an experienced family law lawyer.
Such a professional will help you understand what rights the child has, how the examination or hearing will be conducted, and what you can do to ensure that the child’s participation is as stress-free as possible. They will also advise you on how to prepare an appropriate motion to have the child heard and what arguments to raise if you oppose the child’s examination.
