Can a child testify in proceedings between his parents?

Can your child testify in proceedings?

It sometimes happens that parents become involved in legal proceedings, such as divorce proceedings. A common question here is whether your child can testify in these proceedings. The law is very clear on this: your child is not allowed to testify in proceedings between you and your (ex-)partner. However, this does not mean that your child does not have any voice in the proceedings.

In this Wanted Fact, you will find out more about the legal framework and your child's role in such a situation.

Joint children not allowed to testify in proceedings between you and your (former) partner

The law states plainly and clearly that your child may not testify in legal proceedings in which their parents have opposing interests. This principle has a broad scope and applies to all cases in which parents have opposing interests, including divorce proceedings.

It is important to note that this prohibition only applies to the common children of both parents. Children from another relationship or marriage of one of the parents, i.e. non-common children, are allowed to testify.

The ban applies irrespective of the child's age, i.e. even if the child is of age.

One should interpret this legal provision in the broad sense: the court may not take into account a statement made by your child, regardless of its form or content. This includes not only oral testimony in court, but also written statements such as letters, e-mails or text messages. Even recordings of telephone conversations between you and your child are excluded.

Why these strict regulations?

The legislator has chosen to protect children from the emotional and moral burden of choosing between their parents. There are three main reasons for this ban:

Moral considerations: It is not ethical to force a child to take a stand in a conflict between his parents. This goes against family public policy.
Legal provisions: Article 371 of the old Civil Code states that children owe lifelong respect and regard to their parents. It follows that children may not judge the actions of their parents.
Practical considerations: Legal proceedings between parents are tough enough for a child. Testimony is usually in favour of one parent and against the other. There is a risk that a negative testimony by your child may lead to permanent damage in the relationship with one of the parents. This can cause irreparable tensions and should be avoided at all times.

Your child's voice in proceedings

Although children are not allowed to testify, this does not mean that they have no voice at all in proceedings concerning their welfare. In matters such as the exercise of parental authority, residence arrangements or the right to personal contact, your child does have a limited role.

The right to be heard

From the age of 12, the family court is obliged to invite your child for a hearing. Your child will receive a letter with the invitation at the address of both parents, but is not obliged to accept it.

In principle, children under 12 are not heard by the court. However, there is the possibility for a child under 12 to be heard. This can be at the child's own request, at the request of the public prosecutor, or at the request of one of the parents. The judge will assess on a case-by-case basis whether the child will be heard.

The role of the judge

After the conversation with your child, the judge will make a report. This report is reviewed with your child so that he can indicate any adjustments or improvements. Both parents can review this report afterwards. However, it is the judge who decides how much value he attaches to the information resulting from the conversation. In doing so, he takes into account factors such as your child's age and maturity.

No right of decision for your child

A common misconception is that children from the age of 12 are allowed to choose which parent they want to live with. This is incorrect. Although their opinion can make a valuable contribution to decision-making, it is still the judge who makes the final decision. In doing so, the judge will take your child's opinion into account, but will weigh it against other interests.

For a detailed explanation of children's right to be heard, please refer to the following Wanted Fact: Should children be heard? All about children's hearing rights.

Conclusion

The law provides clear guidelines to protect children from the emotional consequences of legal conflicts between their parents. Although your child may not testify, his or her voice will be heard in matters directly concerning his or her welfare. The judge will always judge autonomously, taking into account your child's opinion and best interests.

Contact Wanted Law!

Do you still have questions about your child's right to be heard, or would you like more information about children's testimonial rights in a conflict between their parents? Feel free to contact one of our Wanted Lawyers so that we can advise and assist you personally.

Also interesting

Should children be heard? All about children's hearing rights.

From when is it every man for himself in a divorce?

Disclaimer

De informatie over juridische onderwerpen die u in deze bijdrage aantreft, zijn louter informatieve, algemene besprekingen en kunnen in geen geval als juridisch advies worden beschouwd. Wanted Law aanvaardt geen aansprakelijkheid voor enige schade die iemand zou lijden door voort te gaan op deze informatie. Als u juridisch advies wenst, dient u contact op te nemen met een gekwalificeerde advocaat die u zal adviseren op basis van uw persoonlijke situatie. Alle blogberichten gepubliceerd op de website van Wanted Law zijn geschreven met toepassing van het Belgisch Recht.

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