One of the most difficult issues a family law attorney faces is when a child is a witness to, or has important information about, an issue in his or her parent’s divorce case. I have never had a child provide a certification to the court. I also never called a child as a witness. Even though there have been times I really could have benefited from his or her evidence. However, I decided that the best interests of a child must always prevail. Thus, leaving the child out of the fray of litigation was paramount.
In a recent Appellate Division case, Lee v. Chandoha, a father sought to eliminate his child support obligation to the children’s mother. He reasoned that their children lived with him while they were home from college. To support his application, he attached sworn statements (affidavits) from his 22-year-old, and 20-year-old children.*
*The motion judge had declined to consider the affidavits even though the children were over the age of 18, finding such involvement in the parents’ litigation “inappropriate and not in their best interests.” The appellate court deferred to the motion judge’s discretion.
It is surprising that the court would not consider certifications of the children even though they were in college and close to the age of presumed self-sufficiency. However, it is an important reminder that children, regardless of their age, must be shielded and protected from being involved in their parents’ litigation. Children have the right to, and deserve to, love both of their parents. To make them choose sides is detrimental to their best interests, and must be avoided at all costs. To do otherwise, is to proceed at your own peril.
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