Whether to use child testimony is a difficult issue to resolve between parents and attorneys involved in child custody cases. Children know more than you think and also may have an opinion. However, child testimony is discouraged in most instances…
“We reiterate that parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so except in the most exigent cases.”- Jethrow v. Jethrow
So, do the children testify or not? For Family Law cases the leading authority is Jethrow vs. Jethrow, 571 So.2d 270 (Miss. 1990). This case lays the groundwork that the Court should use when assessing child testimony. Different Courts and different Judges apply Jethrow in varying ways, but the basic premise is, as follows;
- A child witnesses of tender years, 12 and under for testimony purposes, testifying is subject to the discretion of the Judge.
- Before allowing such testimony the Judge “should satisfy himself that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness.”
Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor at a minimum should follow the procedure required by Crownover v. Crownover, 33 Ill.App.3rd 327, 337 N.E.2d 56 (1975):
- The first hurdle is whether the child is competent to testify.
- The Judge should confer in camera (meaning in the Judge’s chambers/office) with the child and determine whether or not the child’s testimony should be heard
- The Judge has considerable discretion in conducting proceedings of this type, meaning it’s the judge’s decision.
- The court should not, however, reject outright proposed testimony of a child in custody proceedings, where the omission of such crucial testimony might be harmful to the child’s best interests.
- The trial court should take great pains to have an in camera conference with the child to determine the competency of the child,
- as well as the competency of any evidence which the child might present.
- The court should also then determine whether the best interests of the child would be served by permitting her to testify, or
- Whether the child should be sheltered from testifying and being subjected to a vigorous cross-examination.
- The Judge should report the essential material matters developed at the in camera conference on the record.
- The Court should state the reasons for allowing or disallowing the testimony of the child, and
- The Court should note the factual information which the court developed from the conference with the child which would be considered by the court in its ultimate determinations in the case.
A child testifying should be avoided if at all possible.