during a divorce hearing, if the child is asked up to the stand, is he/she legally obligated to testify?

UPDATED: Oct 1, 2022

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during a divorce hearing, if the child is asked up to the stand, is he/she legally obligated to testify?

Hi my parents are in the midst of getting divorced, and i was wondering if i am
legally required to show up to court? and when i am asked to testify can i refuse?
and if i cant refuse, can i plea the fifth to every question they ask?

thanks in advance,

Asked on February 13, 2019 under Family Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can be compelled to testify. The judge would have the right to not have you testify or limit your testimony if he/she deems your testimony is not relevant, or is purely (and unnecessarily) duplicative of other evidence, or would be more harmful to you and it is worth to the case (though this would typically only be in the case of minor children, who may be emotionally harmed by the experience, not adults, who are assumed to be able to deal with the circumstances), but that's at the judge's option: there is no blanket or general exception from having to testify against one's parents. If you believe that there are valid grounds to not testify, you can file a motion to not do so (e.g. motion to quash a subpoena), but will have to support it with facts showing why the testimony is irrelevant, unnecessary, and/or harmful and legal citations (e.g. caselaw) to the same effect. Or if one parent is looking to have you testify against the other, that parent can make the appropriate motion for you. A lawyer would be helpful in doing this.
You can only take the 5th against answers that would incriminate you of a crime--the Fifth Amendment protects you from incriminating yourself of a criminal act. You cannot take it to protect yourself from non-criminal liabilty or consequences, or to protect another person.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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