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Are children allowed to testify in a Wisconsin court?

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During this past week, a case out of Michigan made national news. Three minor children who apparently refused to have lunch with their father, following a bitter divorce and custody battle between their parents, were sentenced by a family court judge to spending time in a juvenile detention center. The court found the children in contempt of court and also prohibited the mother from visiting the children. In a quick reversal, on Friday of this past week, the judge lifted her contempt rulings and allowed the children to be released. The court granted a motion brought by the children’s father and the court appointed guardian ad litem to allow the children to attend a summer camp. The case has drawn international attention and the judge used Friday’s court proceedings to blast all of the news media coverage regarding her decision. The court insisted that she had the children’s best interests at heart.

In light of this case, it raises the following questions; (1) Can children be found in contempt of court in a divorce case? (2) Can children be sentenced to juvenile detention in a divorce case? (3) Are children allowed to come to court to attend their parent’s divorce proceedings? (4) Are children allowed to testify in court?

(1) Can children be found in contempt of court in a divorce case? Under Wisconsin law, I would believe the answer to this question has to be a resounding “NO,” for the reason being that children are not parties to their parents’ divorce action. The parents can be found in contempt for interfering with the other parties’ placement and/or visitation rights, but since the children are not “parties” in the action, I don’t believe that any circuit court judge has the right to find the children in contempt of court.

(2) Can children be sentenced to juvenile detention in a divorce case? Under Wisconsin law, if children are not parties to their parent’s divorce action, and cannot be found in contempt in the first place, than it follows that a circuit court judge does not have authority to put children in a family law case into juvenile detention.

(3) Are children allowed to come to court to attend their parent’s divorce proceedings? While under Wisconsin law, the general answer may be yes, I can tell you from experience that most family circuit judges would frown upon any parent bringing their children to court for any reason and further, would be angered to the point that they could find the parent who brought the children to court in contempt. It is never advisable to involve children in a divorce case in their parent’s legal matters and one should never bring their children to court for any reason without discussing the same first with their lawyer, and seeking advance permission of the children’s guardian ad litem, and the court itself. I have even had some circuit judges frown upon parties in a divorce action who have brought their adult children to court and have prohibited adult children from testifying in court over matters pertaining to their parent’s divorce.

(4) Are children allowed to testify in court? We have all watched television and movies where it appears normal to have children testify in court from the witness stand and be cross examined by attorneys. While that makes for good drama, it is generally almost never allowed in the state of Wisconsin. After practicing for over 33 years, I have never seen children be allowed to testify in court in a family law matter, whether during the divorce or any post-divorce case. There are a number of people who think that children are never allowed to testify in court; that is not necessarily true either. Courts do have discretion in Wisconsin to allow children to testify, but the preferred means of finding out what children have to say is usually through their court appointed guardian ad litem, where the wishes of the children are to be conveyed through their court appointed attorney (guardian ad litem). If the court ever wanted to consider talking to the children directly, the preferred means under Wisconsin law for the judge to do that would be in chambers (the judge’s office or conference room). Under Seelandt v. Seelandt 24 Wis. 2d 73, 80, 128 N.W.2d 66, 70 (1964) and Haugen v. Haugen, 82 Wis. 2d 411, 417, 262 N.W.2d 769 772 (1978), in both cases the Wisconsin Supreme Court approved the trial court’s interview of children in chambers to determine the child’s preference. In Hughes v. Hughes, 223 Wis. 2d 111, 588 N.W. 2d 346 (1998), the court determined that it was not error for the trial judge to refuse the mother’s request to allow their child to testify in court. The court determined that the mother does not have right to call the child as a witness and it was not an abuse of discretion for the trial court to refuse to do so.
The judge in the Michigan case from this past week, within a day quickly reversed herself and let the children out of juvenile detention. The court’s finding of contempt and placing the children in detention seems harsh, inappropriate and out of proportion to the issues involved in the case. It is unorthodox and under Wisconsin law would not be allowed. Children are not parties to their parent’s divorce action, at least not in this state. Children cannot be found in contempt of court or placed in detention in their parent’s divorce case, no matter how bad or inappropriate their conduct might be when it comes to spending time with either of their parents. Children should not be brought to divorce court. While the judge has discretion to allow a child to specify their wishes in a custody case directly to the court, most judges are uncomfortable in interviewing children and the majority will not do so. I know I have had this discussion with several different judges in family court, and most say the same thing, “I have never allowed a child to come to court to testify and would never allow a child to come to court to be interviewed, either informally in chambers, or by testimony on the record in an open court room.”

When involved in a custody case, it is best to have an experienced family law represent you. Contact one of our attorneys if you have questions.

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