Can a Parent Force Their Child to Testify in a Maryland Custody Modification Hearing?
Child custody disputes in Maryland obviously focus on what is in the best interests of the child. In making such a determination, a judge may consider the child’s own “preference.” Indeed, if the judge refuses to consider the child’s preference, that can be grounds for overturning a final custody order on appeal.
Appellate Court: Judges Not Required to Talk to Children
At the same time, Maryland case law does not require a judge to interview the child or allow the child to testify in court. And parents do not have the right to require the child’s testimony in a contested custody case. The Appellate Court of Maryland addressed that very point in a recent decision.
The case before the Appellate Court, Barry v. Schwender, involved a father representing himself in a petition to modify an existing custody order. The child in question is presently 10 years old. The parents divorced in 2022. The court’s final order granted the mother sole legal custody and primary physical custody. Nearly three years later, in early 2024, the father filed his petition to modify custody. He was now seeking sole legal and primary physical custody.
Shortly before a scheduled hearing on the father’s petition, he issued a subpoena for the child, who was eight at the time, to testify. The mother moved to quash the subpoena, arguing it would subject the child to “emotional distress and unnecessary trauma.” The trial judge granted the motion to quash, explaining that he “very, very rarely” spoke directly with children who were the subject of contested custody cases as he found “it is more harmful than it is beneficial to hear what the child has to say” when, as here, there was a “high level of antagonism between the parties.”
The Appellate Court affirmed, holding the trial judge acted within his discretion to quash the subpoena. The Court noted that in prior cases, it has established that trial judges have “the discretion whether to speak to the child or children and, if so, the weight to be given the children’s preference as to the custodian.” But Maryland law never requires a judge to speak with a child, and it is possible for the trial court to “discern the child’s preference by methods other than interviewing the child.”
It is also worth noting that when deciding whether to interview a child in a custody case, judges must take into account the child’s age and “capacity to form a rational judgment.” So as a general rule, judges are less likely to interview a child under the age of 8 than, say, a teenager. But there is no hard-and-fast rule. As with many aspects of child custody, the judge must look at the specific facts and parties involved.
Contact a La Plata Child Custody Attorney Today
Representing yourself in a highly contentious custody dispute, as the father in the case above did, is generally not the best way to proceed. You are far more likely to obtain a better outcome if you work with an experienced La Plata child custody lawyer. Contact Fanning Law today at 301-934-3620 to schedule a consultation. We serve clients in LaPlata, Waldorf, and Lexington Park.
Source:
scholar.google.com/scholar_case?case=6868280399655166482
