Can a Child Testify in a Nevada Custody Case?

Parents involved in a child custody court action often ask whether a child can testify in the case. In Nevada, complex state laws and court rules apply to child witness testimony. While the judge may permit a child to testify in some situations, there are strict limitations and conditions that apply. Even if allowed, a child’s testimony is not conclusive on the issue of custody. It is only one of many factors that determine the outcome of the case.

Nevada Laws and Court Rules on Child Testimony

Two specific sets of legal standards apply in a case involving potential witness testimony by a child. The first is a statute adopted in Nevada known as the Uniform Child Witness Testimony by Alternative Methods Act, found at NRS 50.500 through 50.620. The law, which applies to children under the age of 14 years, provides standards and a process through which a child witness may be allowed to testify by a method other than providing testimony in open court. Designed to protect the child’s welfare and prevent a traumatic experience and emotional distress, the statute also recognizes the need to permit a full and fair opportunity for examination and cross-examination by each party.

In addition, Rule 16.215 of the Nevada Rules of Civil Procedure applies specifically to child witnesses in custody proceedings. It applies to testimony by a child under the age of 14 years, by reference to the Act. The Rule states: “When determining the scope of a child's participation in custody proceedings, the court should find a balance between protecting the child, the statutory duty to consider the wishes of the child, and the probative value of the child's input while ensuring to all parties their due process rights to challenge evidence relied upon by the court in making custody decisions.”

The Act and Court Rule guide the court in determining whether a child should be allowed to testify and, if so, whether an alternative method of testimony is necessary. Examples of alternative methods of testimony include: 1) The court interviewing the child witness outside the presence of the parties, with counsel for both parties present or with the parties’ counsel viewing the interview through an electronic method, 2) The parties’ counsel questioning the child in the presence of the court, without the parties present, 3) The court interviewing the child with no parties present, but with the parties viewing the interview through an electronic method, if viewing is not contrary to the child’s best interest.

Considerations for the court in making decisions about the child witness are provided in the statute and the court rule. From a practical standpoint, judges rarely allow children under the age of 12 years to provide testimony.

For children aged 14 years and older (to whom the Act and Court Rule technically do not apply), the court makes a decision of whether to allow testimony based on the age and maturity of the child and other factors. Some of the considerations in the Act and the Court Rule may also be taken into account by the judge. Individual family courts and judges have their own practices and standards for addressing requests for child witnesses, within the requirements of the law and court rule.

Procedure for Child Testimony

A party who wants a child to testify in a custody case must identify and disclose the witness either by notifying the court at the time of the case management conference or by filing a notice of child witness. The judge may hold a hearing to determine whether the child should be allowed to testify and whether an alternative method of testimony is necessary.

If you are involved in a child custody case, representation by experienced family law attorney is always strongly recommended. If you want to consider having your child testify, having legal counsel is extremely important. The provisions of the statute and court rule are extremely complex. You should get legal advice about how those standards affect your case before you make a request to the court. If you make a request and the court holds a hearing, representation by legal counsel is crucial. Similarly, if the other parent makes a request for the child to testify, you should have legal representation in order to oppose (or support) the request.

Guidance from a lawyer is critical in deciding whether to ask the court to allow a child to testify, evaluating the potential impact of the child’s testimony on the child and on the case, gathering and presenting evidence at a hearing concerning the child as a witness, and opposing or supporting a child witness request from the other parent. These issues involve complicated factual and legal questions that must be evaluated and fully explained by an experienced professional, before you make a decision on how to proceed.

Effect of Child Witness Testimony

It is important to keep in mind that even if your child testifies in the custody case, their testimony — standing alone — does not determine the outcome of the case. Under Nevada law, the judge is required to make a decision based on the best interest of the child, taking into account a broad range of factors. While one of those factors is the child’s wishes if the child is old enough to have a preference, many other criteria enter into making the decision. Please read our previous blog post, How Does a Judge Determine the Best Interest of a Child in a Nevada Custody Case?, for detailed information on that important question.

Schedule a Free Consultation with a Las Vegas Child Custody Lawyer

Experienced Las Vegas custody attorney Joseph Gersten assists clients with all types of family law matters, including child custody. He approaches every case with compassion and dedication to protecting the interests and rights of the client. If you face a legal action involving custody, please take the time to talk with us without a charge or obligation. The Gersten Law Firm serves clients in Las Vegas, Henderson, and elsewhere in Clark County. Call us at 702.857.8777 or complete our online form to schedule a free initial consultation.