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Matrimonial and Family Law Blog

Sunday, November 11, 2018

Do My Children Have To Testify Against Their Parents In A Custody Hearing?

Depending on the child’s age, a judge may take into consideration a child’s reasonable preference when determining custody in New York. However, in many child custody disputes, the court appoints a New York child custody lawyer or Guardian ad Litem (GAL) to represent the child’s best interest. The GAL or child custody lawyer for the child discusses the child’s wishes with the child, depending on the child’s age, and may interview witnesses or other parties. The child’s lawyer or GAL then advises the court what the lawyer discovers, including the child’s wishes, if applicable.

However, in some circumstances, the judge may want to hear directly from the child in a custody dispute case. When the judge wishes to hear from a child, an “In Camera” hearing may be scheduled to protect the child.

What is an In Camera Hearing?

In Camera means “in private.” Therefore, an In Camera hearing is a private hearing involving the judge, the child, and the child’s lawyer or GAL. The parents and the New York child custody lawyer for each parent do not attend the hearing. The purpose of an In Camera hearing is to protect a child who has already suffered and may continue to suffer trauma and discomfort because of the divorce and custody action.

In the case of Lincoln v. Lincoln, 24 N.Y.2d 270 [1969], the New York Court of Appeals outlined procedures for taking testimony from a child in custody and divorce actions. In a 2013 decision by the Appellate Division, Third Department, the court reiterated the necessity and usefulness of a Lincoln hear to protect a child in a custody case. In Casarotti v. Casarotti, the court recognized the Family Court judge had the discretion whether or not to authorize a Lincoln hearing (In Camera hearing). However, the court believed the Family Court judge erred when forcing a teenager to testify in open court with both parents and their attorneys in the room.

The court in Casarotti emphasized the importance of protecting a child when testimony is required in a custody case or other family court matter. The final order found that a child does not need to be put in the situation of testifying in open court about the child’s difficulties with the parents because that could further jeopardize the parent-child relationship. The court went on further to state that holding the meeting with the child in private would have been more worthwhile and informative.

File a Motion for an In Camera Hearing

If you believe your child’s testimony is crucial to your argument in the custody case or the other parent is trying to force your child to testify, you can file a motion for a Lincoln hearing before the judge.  Your attorney can help you present an argument to the judge that it is in the best interest of your child to provide testimony in private. The judge should consider the child’s best interest when ruling on your motion.

Contact a New York Child Custody Lawyer

Contact Gassman Baiamonte Gruner, P.C. to speak with a New York child custody lawyer today to discuss the steps you need to take to protect your interests in a business during your divorce action.


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