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Kevin O'Flaherty

In this article, we discuss preparing a child for testimony in custody cases, the responsibility of the guardian at litem (GAL), the importance of providing ground rules in terms the child will understand, and how to determine a child’s level of cognition based on their understanding of certain concepts.

Custody cases often require testimony from the children involved. Out-of-courtroom testimony is utilized as much as possible, but there are instances when the child may need to take the witness stand lest the allegations against one or more parents not stand do to lack of evidence. For more information on this check out our article, “Can A Child Be Forced To Testify In Illinois Custody Cases?” Whether the child will only be required to give a statement in the judge’s office or be questioned at the witness stand, it is extremely important to both the child’s emotional well-being and the quality of testimony, that the child is as comfortable and prepared as possible going into questioning. 

Responsibility of the Guardian Ad Litem In Minimizing Emotional Trauma

A big part of helping a child manage the stress and anxiety that comes with testifying is the strength of the relationship between the attorney, GAL and the child. In cases involving abuse or neglect, the GAL may be one of the few, if only, adults the child can place any trust in and feel safe, but a reasonable level of trust can only be established by regular visits from the GAL.

The guardian ad litem will need to find ways to ease the child’s emotional anxiety in the weeks and days leading up to giving testimony otherwise the quality of the testimony may be called into question by the opposing party.

Preparing For Testimony In The Judge’s Office

In many cases, children will only need to provide testimony in the judge’s chambers, but there are still many preemptive measures to take in order to ensure the best possible questioning experience for the child. 

  • The attorney and/or guardian ad litem should explain to the child the role of each person who will be present at the testimony;
  • It is also important that the child understands that her parents will also know about the testimony. Depending on the specifics of the case and the relationship between the child and the parents this may seem counterintuitive, but it saves the child from the surprise and potentially dramatic emotional impact from finding out after the fact. At least if the child knows ahead of time she and the GAL can work through any apprehension;
  • Have the child and the guardian ad litem tour the judge’s chambers before questioning;
  • During the tour or afterward, explain to the child the various personnel who may also be present but are just part of the normal day to day workings of the court.
  • Make sure the child understands that a support person will be there but not necessarily in the room;
  • The attorney or GAL should see if the normal judge’s chamber or courtroom formalities can be suspended. This might include using first names instead of formal titles and last names, allowing the child to determine break times, allowing the child to eat a snack, or have a “transitional object,” such as a stuffed animal to help ease her anxiety during the question. A transitional object should not be included if there is concern that one party may attempt to ask the child questions about the object, such as naming body parts on the stuffed animal or doll. 

Preparing For Direct Examination and Possible Cross-Examination

It’s uncommon that a young minor will be subject to direct examination by another party, let alone cross-examination. However, certain cases may require the child to answer questions from one party’s attorney or the judge, during the trial. Most, if not all of the preparation measures mentioned above are still pertinent prior to direct examination, but the attorney and GAL will need to take additional steps leading up to the hearing.

  • If the attorney for the other party will be questioning the child, they should meet prior to the hearing, and the child’s attorney should work to establish rapport between the two;
  • Determine if it would be better for the child’s attorney or the judge to ask questions prepared by the two parties. This can help to minimize the child’s anxiety and confusion from being questioned by multiple individuals;
  • If using the judge for questioning, confirm that the judge will only stick to prepared questions, be respectful of the child’s need to take breaks, and allow for follow-up questions admitted by the parties if necessary.

Providing Easily Understood Ground Rules 

Part of the coaching process for the child prior to the court date should be to explain what will take place prior to and during questioning and how to respond. The attorney should explain to the child why they have to take an oath prior to questioning, what it means, and the potential consequences of not following the oath. Ultimately, the child needs to understand the importance of not lying while on the witness stand.

The attorney should explain to the child that simple, but detailed information is important for the judge to understand and give value to what the child is saying. It’s also very important to coach the child on how to respond when she doesn’t know the answer to the question or doesn’t understand the question. Teaching the child to respond with the same phrase, “I don’t know,” can be a good way to get them comfortable with responding to questions they don’t have information on. The same goes for responding to a question the child doesn’t understand. 

Using Age-Appropriate Language When Evaluating a Child’s Level of Understanding

It’s important for the attorney to get an idea of the child’s language skills and level of development. Asking the child detailed questions using language that is beyond her comprehension will only serve to muddy the testimony and waste everyone’s time. When speaking with the child the attorney should listen for certain cues to determine the child’s current language skills.

  • Can the child put together intelligible sentences? Does her speech become worse under stress?
  • How complex is the child’s grammar overall?
  • How long are the child’s sentences? How many syllables are used per word?
  • Does the child use the correct tense and pronouns?

Beyond general language development, the attorney will need to get an idea of the child’s comprehension of concepts likely to come up in questioning, such as:

  • Systems of Measurement
  • Time
  • Body Parts and What They Are Used For
  • Locations
  • Colors
  • Numbers
  • Relative and Relationships

There are a bevy questions the attorney can ask the child for each category to determine the child’s level of understanding. Once the attorney has a better grasp of the child’s comprehension and understanding of concepts potentially related to the case, the attorney can more effectively prepare the child for testimony. Having an experienced qualified attorney is one of the most important factors in determining the success of your child custody case.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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