Parties in custody battles should think hard before seeking to offer child testimony

Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What can I do to gain custody of my child in North Carolina?”


In North Carolina, the ultimate arbiter of custody is the District Court judge. The District Court judge is vested, by statute, with the authority to determine who should have custody of a child and the terms under which custody shall be exercised.

Child on school bus Mecklenburg Divorce Lawyer Family Law Law firmOf course, the decisions of a District Court judge are subject to appeal, but when parties do appeal a District Court decision and one of the state courts of appeal decides to entertain the appeal, those courts frequently uphold the decisions of District Courts, and if they do not, many times they simply clarify the manner in which a judge should have considered the case and send it right back to the District Court to consider the case anew.

A party’s presentation regarding custody is made in District Court, and the person a party needs to convince is the District Court judge. Many parties believe a good way of convincing a District Court judge that they should have custody of a child is to have the child testify before the court. After all, who better knows what is in one’s best interest than oneself?

The problem with that ideas is that minor children are considered “infants” or “incompetents” under North Carolina law. Minor children do not have the capacity, for instance, to enter into contracts. A court will not take a proposal to allow a minor child to testify lightly. A judge will likely conduct a hearing to consider whether testimony would be appropriate in a particular case, and if so, what measures or protections may be afforded to the child while testifying.

Ultimately, it is up to the judge to decide what weight to afford to a child’s testimony. Such testimony may sway a judge in a particular case, or it may not if a judge believes disregarding a child’s expressed wishes regarding custody would be in the child’s best interests.

Writing in the Huffington Post, family-law attorney Caroline Choi encourages parties who are considering allowing a child to testify to think about the extralegal effects that testifying in court may have upon a child. Testifying in court can be a traumatic experience for an adult. The experience may have a profound effect on a child, particularly if the testimony is rendered at an age at which the child is uniquely impressionable.

A divorce between one’s parents can traumatize a child. Being asked to testify about wanting to live with one parent may cause a child to feel that he or she has been forced to choose a side. Choi encourages parents to think about the psychological effects that this may have upon a child.

In addition, Choi encourages parents to look within themselves, to ensure that they are not seeking to use a child as a means of striking out at a spouse or ex spouse against whom one is battling for custody. Unfortunately, in custody battles children are often left to suffer the collateral damage of battles waged between the two people they love best.

If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.



About the Author

ARNOLD&SMITH_243 3.jpgMatthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.

Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.

A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.

In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.






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