In rare occasion, children can sometimes be witnesses a in Family Court cases. As a general rule, the child must be of sufficient age or awareness that his/her testimony will be believed. In some cases, the Judge may agree to talk with a child in Chambers, but most Judges don’t — except in rare, extreme circumstances. Usually, the child’s position in a case is represented through a Guardian ad Litem, who is appointed to protect the child’s interests.
In South Carolina there are many factors to whether the child can speak in court. A child who is only 8 is not likely going to be called to testify, or if they are going testify, it will be in camera with the Judge taking the testimony. If the child is a little older the child might be asked to testify in court, however, unlikely. Once a child is 14 or 15 the court is more likely to allow the child to testify, however, that is not always going to happen and an attorney will need to argue the case regarding facts and circumstances surrounding the case. Judges are not looking to have children in the courtroom unless they absolutely have to.
According to S.C. Code Ann. § 63-15-30 the court should consider the child’s preference, but it does not say that should be via testimony:
“In determining the best interests of the child, the court must consider the child’s reasonable preference for custody. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.”
There is extensive case law on this issue in South Carolina, including, Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114, 120-121 (2004) and Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785, 790 (Ct.App. 2004). An attorney would be able to explain the case law and information pertaining to this case.
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