Children Testifying in Virginia Divorce Proceedings
ABCnews.com has reported an interesting study of high school and college students, built upon data from tens of thousands of psychological surveys in use since 1938, that concludes depression, anxiety and other mental-health issues are far more prevalent among today’s youth than they were during the Great Depression. In fact, five times as many students in 2007 reported signs of mental illness than did those in 1938. Some researchers speculate that today’s emphasis on wealth and appearance places an overwhelming pressure on young adults to be “hot” and “live large,” while others propose overprotective parenting keeps kids from developing independence and coping skills. Jean Twenge, psychologist and lead author of the study, hypothesizes that a focus on material things has replaced a focus on relationships.
Adding to a young child’s burden by requiring him/her to testify in a contested divorce proceeding is not a matter to lightly undertaken by a parent. Virginia Code Section 20-107.2(7) requires, as a factor for determining the best interests of a child, that “the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference…” be considered. There is no precise age at which a child is deemed to have reached the “age of discretion;” the statute effectively provides a sliding scale whereby a judge can exercise discretion in determining whether a child is competent to testify and how much weight, if any, the testimony should be given.
As a general rule, the older a child gets, the more likely it is that the child’s preference will play a significant role. Of course, there are always exceptions. For example, teenagers are typically considered to have reached the “age of discretion,” but if a teenager’s conduct reflects a lack of maturity and understanding (e.g. the teenage has legal or academic problems, or prefers to reside with one parent merely because that parent is less strict) the testimony may be heard, but given little weight. As another example, children below the age of 12 are typically not considered to have reached the age of discretion, but reported cases exist finding particularly mature and experienced children as young as 7 and 8 years old competent to testify.
There are several alternative mechanisms by which a child’s preference may be communicated to the Court without his/her direct testimony. Moreover, there are avenues for presenting a child’s preference to a Court that minimize his/her stress level. If you have questions about this topic or in any other regard, feel free to drop me a line.