No one is more affected by custody determinations than the children. On the other hand, the courts strain to prevent children from having to testify in front of their parents.

In Matter of John V. v. Sarah W., the Appellate Division, Third Department, in its October 20, 2016 affirmed a change of physical custody to the father. Doing so, however, the court noted that it had been improper to allow a child of 12 to testify in front of the parents’ lawyers in the absence of the parents.

In 2009, the parents had agreed to joint legal custody of their then seven-year old son, with primary physical custody to the mother and parenting time to the father. In July 2014, after the child reported to the father that the mother’s live-in fiancé “ha[d] been hitting” him, the father commenced this proceeding seeking primary physical custody of the child. Following a fact-finding hearing, which included testimony given by the child outside the presence of the parties but in the presence of counsel, Broome County Family Court Judge Rita Connerton modified the prior order of custody by awarding primary physical custody to the father and reasonable parenting time to the mother. The mother appealed and the Third Department affirmed.


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