January 3rd, 2018



By:  Austin E. Williamson and Heather Rooney McBride

What role does a child play in Court?  The short answer is, hopefully, a limited one; however, one of the unfortunate truths is that domestic matters typically do not happen in a vacuum.  Divorce or custody matters often have a significant impact on family, friends, and most often, the children of the parties.

When coming to a custody determination, RSMo 452.375.2 mandates that the Court consider several factors in determining the “best interest” of the minor child.  One of those factors is “the wishes of a child as to the child’s custodian.”  RSMo 452.375.2.  The easiest way for a child’s wishes or opinion to be made known to the Court is through a Guardian ad Litem, an attorney assigned by the Court to protect the minor child’s best interests; however, if the Court believes it necessary, the Court may interview a child in chambers or without the parties present to ascertain the child’s wishes as to his or her custodian and relevant matters within his or her knowledge.  RSMo 452.385. The Court does have to allow attorneys to be present during the interview, and the interview with the child will be “on the record” or recorded for the trial transcript. RSMo 452.385.  Importantly, RSMo 452.385 provides that the Court may allow the interview of the child; having your child testify on your behalf is not a right, and a Court can deny a request for a minor child to testify even if you believe the child’s testimony is vital to your case.

Considerations for the Court to determine if an interview of a child is appropriate may include, but would not be limited to, the age of the child, the child’s competency, if the child has made the request to testify, the motivation of a request to testify made by a party or a child, the Guardian ad Litem’s opinion, and whether testifying would be in the minor child’s best interest.  It is important to note that there is no “magic” age in which a child may testify or at which a child’s opinion is determinative; even if a child is allowed to testify, the Judge will determine the appropriate weight and credibility to be given to the testimony.

In discussing options with your attorney, it is important to remember that even though what happens in litigation may affect your child, it may not be the best choice for your child to have him or her testify.  In most cases, agreeing with the other side not to have children testify is likely in the child’s best interests.

If you would like to know more about options concerning a divorce, custody or another domestic matter, please contact Rooney McBride & Smith, LLC today to schedule a consultation.