Can Children Testify in Child Custody Cases in Maryland?

by | Jun 23, 2021 | Firm News

Angelina Jolie and Brad Pitt were recently involved in a tumultuous divorce, which also involved a dispute over who would get custody of the parties’ minor children.  At a custody hearing, the presiding judge refused to hear the testimony of the minor children as to which parent they preferred to live with.  Jolie, frustrated with this decision, petitioned to have the judge disqualified for his failure to consider relevant evidence regarding the children’s’ safety and well-being.  Jolie also claimed that the judge failed to adhere to a California statute which would permit the children to tell the court which parent they preferred to live with. 

The Judge’s Discretion

In Maryland child custody disputes, the court makes custody decisions based on what a judge believes is in the “best interests of the child”.  In making these determinations, the judge is afforded great discretion as to what evidence will be admitted at trial and what weight it will be given.  In some circumstances, the preference of the child may be considered. 

Generally speaking, however, most judges are reluctant to allow children to testify in open court.  Judges would rather not place a child in the middle or give the child the impression they can decide who they will live with.  In rare cases, a judge may elect to speak with a child in chambers outside the presence of the parents.

Children Testifying in Maryland Custody Disputes

Unlike in California, Maryland has no specific statute that requires a judge to consider the preference of a child in a custody dispute.  Maryland case law, however, has evolved throughout the years to include a number of factors that a judge should consider when making a ruling in a child custody matter.

One of these factors is the “preference of the child”, with the caveat that the child is competent to testify truthfully.  This determination rests on the sole discretion of the presiding judge.  To make this determination, the judge will consider the child’s age, their ability to form a rational judgment, and their ability to provide relevant and truthful testimony.  Sometimes a mental examination of the child may be necessary to determine the child’s competency.  Below are some instances when a child’s preference has been considered by courts in Maryland:

·       Sullivan v. Auslaender – the parties had three minor children, one as young as 9 years old.  The court held two separate interviews with the children in chambers without the parties or the parties’ attorneys present to determine the child’s preference. 

·       Kirstukas v. Kirstukas – the court deferred a ruling on custody until it had the opportunity to interview the parties’ minor children in chambers to ascertain which parent they wanted to live with.  At the time of trial, the children were age 10, 9, and 5.

·       Brandau v. Webster – the lower court refused to hear the testimony of a 5 year old at the custody trial.  The appellate court held that this was error, and that the lower court was required to conduct a mental examination of the child prior to determining her competency.

In all cases where the preference of the child is considered by the presiding judge, it is important to note that the child’s preference does not control the final outcome.  The judge will weigh all relevant factors as to each parties’ fitness as a parent and make a determination ultimately based on what is in the best interest of the child.   

Child Custody Attorney in Rockville, MD

Jeffrey N. Greenblatt, Esq., has over 45 years of experience litigating highly-contested child custody disputes in Montgomery County and throughout Maryland.  If you or a family member are involved in a child custody dispute, contact Jeffrey N. Greenblatt today at (240) 399-7894 to schedule a consultation.

Article prepared by Nick Johal (paralegal), and Jeffrey N. Greenblatt, Esquire.