“No Way (S)He is Calling Our Child at Trial!” Five ways to Make Children Heard without Calling Them as Witnesses

In custody matters, the best interests of the children are paramount, and the process seeks to determine who shall have physical and/or legal custody of the minor children of the parties. However, the parents are the parties to a custody matter, not children, and in fact, children’s statements are generally hearsay, and not admissible in Court under the Rules of Evidence. So, how are children heard in the judicial system? There are several ways.

There was a previous presumption that a child under age ten (10) was an incompetent witness. This has been repealed (revoked) for several years. So, one way for children to be heard is for them to be called as witnesses if they are competent (generally, can tell the truth from a lie) or to request an in camera interview (children have conversation with the judge). However, this is often discouraged by both parents and Courts due to the antagonistic nature of proceedings, and the desire not to put children in that position to testify against one or both of their parents.

There are several potential means for children to be heard in custody matters directly and indirectly.

1. Parenting Coordinators: A parenting coordinator works with parents to help resolve parenting time and custody issues prior to taking the matters to Court. There are differing levels of parenting coordinators, depending on the needs of the parties. A parenting coordinator may likely not communicate directly with the children, but will hear the parents’ sides and make a recommendation to the Court. A parenting coordinator can make binding recommendations which can be directly adopted and approved by the Court. Either parent can move to discharge a parenting coordinator.
2. GAL/CASA: These resources provide a voice to the children, and interview the children directly and often with each parent. A GAL or CASA may be an attorney, social worker, or psychologist. They focus on the best interests of the children, and make a report, which often costs less than a custody evaluation.
3. Custody Evaluation: These are performed by a provider (generally, Ph.D. level) who interview the children and parents and often perform mental health testing of the parents. Custody evaluators follow APA (American Psychological Association) guidelines and submit a report to the Court with recommendations. There are higher costs associated with a custody evaluation.
4. DRCB: This stands for Domestic Relations Counseling Bureau. It is a product of statute, and is similar to a custody evaluation, and Ordered through the Court.
5. Counselor/therapist: If children are in private therapy before or during a custody proceeding, the therapist may play a role in expressing the voice of the children. However, there are risks that if one parent is involved with/ “running” therapy, that parent’s views will be more known to the counselor. Also, therapy may not address each root problem if both parents are not involved with same.

Ultimately, the best interests of children is always the goal, and Courts can use or choose not

to use information from the sources above. Knowing how to give your child a voice during a custody matter can help you and your child feel more comfortable, and there are several options available.

We hope that this blog has been helpful in exploring children’s voices in custody matters. This blog is not intended as legal advice. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.