Should children testify before the judge in a divorce proceeding?

In the context of a divorce proceeding involving children, their protection and the possible repercussions that may arise from the situation logically tend to be the most common concern of all parties involved. For this reason, lawyers specializing in family law are frequently consulted about minors having to testify before the judge, and to what extent this is obligatory or inevitable.  

Discussions in which children speak to judges are known as child interviews, whose regulation is subject to various laws. One key aspect to keep in mind is that such interviews are currently regulated from the perspective of the child’s right to be heard, in accordance with the provisions of article 92 of the Civil Code. Thus, they must be adequately informed about the possibility of offering their point of view regarding aspects affecting their custody, care and education.

However, you should keep in mind that the Civil Procedure Law establishes a dividing line at 12 years of age. Beyond this age, an interview is obligatory as long as the judge considers it necessary (practically always in contested divorces, but rarely in uncontested divorces) or when requested by the court’s technical team, the public prosecutor or the child. At younger ages, an interview only takes place when the child is considered to possess “sufficient judgment”.

At ICN LEGAL, we’d like to remind you that such hearings with a judge occur under special conditions to try to make them easier for children. Therefore, they take place behind closed doors, usually without the parents present. The judge uses a friendly and relatable style, trying to avoid an interrogation format that pressures the child, and instead encouraging them to express themselves naturally. They often do away with their robes. In addition, these sessions aren’t recorded; only a brief written record is prepared.

On the other hand, the judge may request that reports be issued by specialized professionals such as psychologists or educational psychologists if they deem it necessary to better understand the situation and the child’s feelings. These can be specialists who have previously treated the child, if applicable, or else professionals appointed to conduct a specific evaluation.

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