Can Children Testify in Court?

Child testimony is an often discussed issue between parents and attorneys dealing with family law cases. When parents are getting a divorce the children usually know more than their parents think and have “discoverable” information. The children most likely witnessed fights, arguments, or other “bad” conduct. Perhaps they knew of one parties misconduct and were asked to help hide it, or at least not disclose it. Also, the children frequently know there is more to the story than mom and dad can no longer get along.

“We reiterate that parents in a divorce proceedingimgres.jpg 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? Typically having the children testify should be avoided if it can be. There are several seminal cases in Mississippi law that deal with child testimony. For Chancery Court, or divorce court, purposes 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 a judgment call.
  • 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.

Generally, the testimony of a child called as a witness in a divorce case should not be excluded for reasons other than competency, or evidentiary defects, or for the protection of the child. (24 Am.Jur.2d, Divorce and Separation, A 415). There should not be a summary refusal to inquire as to the competency of the child to testify and also of the competency of the proposed testimony of such child in a change of custody proceeding.

“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. The reason and wisdom behind this precaution need no amplification. We also hold, however, as we must that no parent can be precluded from having a child of the marriage in a divorce proceeding testify simply because of that fact.” Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990).

A child testifying should be avoided if it can be, however if it cannot be avoided the above process will likely be used by the Court to determine if and how the child will testify.

Visit the website: #Thompson Law Firm  You may also contact Matthew with your family law matter or question at (601) 850-8000 or Matthew@bowtielawyer.ms

Condoning Bad Behavior; Losing Grounds for Divorce

They cheated! You found out…you TRIED to work it out, but the trust has been broken and you just cannot get over it.  You decide you have no choice but to file a suit for adultery.  You’ll get your fair share and move on. Right? Not so fast…

In Mississippi, to be awarded a Divorce, you have to either have Fault Grounds(click) against your spouse, that can be proven, or you and your spouse have to agree to ALL issues in the divorce, via Irreconcilable Differences(click). (All issues must be agreed; the divorce, itself, who gets what, who pays what, everything has to be agreed).

Additionally, in Mississippi, there are Defenses to a Divorce.  A Defense can be used to prevent the Divorce. One of those Defenses is Condonation.

Condonation is “legal forgiveness.”  This happens when the aggrieved spouse knows of the fault, in this example an affair, and decides to reconcile with the other party, when you TRIED to work it out.

Once the aggrieved party makes that decision to reconcile and the parties resume, or continue cohabitation, and resume marital relations (sex) the aggrieved party has legally forgiven the guilty party.  So what does that mean?  There are no longer grounds for divorce based upon adultery.

There are a few catches.  The guilty spouse must, in good faith, attempt the reconciliation intentionally with the purpose of saving the marriage.  Additionally, the aggrieved spouse can only forgive what they know about.  If there were multiple affairs and all were not disclosed there may still exist fault grounds, whether they are aware of it or not.  Also, the behavior, the adultery, if repeated revives the grounds for divorce.  That is, past acts that were known may have been forgiven, but if repeated the aggrieved would have grounds again.  Future acts would not be forgiven either solely based on a prior reconciliation.

Condonation is one of those more difficult issues to wrestle with in divorce.  The Court must consider the knowledge of the aggrieved spouse, the intent of the guilty spouse, the effort(s) to reconcile – whether they are in good faith.  All these are fact specific and subjective determinations to be made by the Court.

Warning!!  Some lawyers will advise the guilty party to do or say whatever is necessary to get the other party back in bed, for “reconciliation,” so that the defense of Condonation may be used.  If you find yourself in this situation, please seek the advice of an attorney prior to a reconciliation attempt.  Divorce attorneys can also help you save your marriage, or at least advise you on the ramifications if you try.

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Grandparents, Not Just for Babysitting (Grandparent’s Visitation in Mississippi)

For as long as people have had children there have been grandchildren.  Where there are grandchildren there are Grandparents.  Where there are Grandparents there are free babysitters!

Mississippi has a statute, MCA 93-16-3, that specifically provides for Grandparent’s Visitation.  Grandparent’s Visitation is different from babysitting and is different from just being in the child’s life.  Specifically, Grandparent Visitation is for when the mother or father of the child dies, to insure that the Grandparent continues to have access to the child or when the Grandparent and their child have a falling out and the Grandparent has a viable relationship and active in the grandchild’s life, and also in divorce and/or Termination of Parental Rights (TPR) situations.

The law provides a viable relationship may be proven by showing that the grandparent has supported the grandchild in whole or in part for at least six months prior to the filing of the petition, or the grandparent had frequent visitation for one year prior to the filing of the petition.

The case of Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), list the factors the Court considers when determining the amount of Grandparent Visitation.

  • Potential disruption in the child’s life;
  • Suitability of the grandparents’ home;
  • The child’s age;
  • The age, physical and mental health of the grandparents;
  • The emotional ties between grandparents and the child;
  • The grandparents’ moral fitness;
  • Physical distance from the parents’ home;
  • Any undermining of the parents’ discipline;
  • The grandparents’ employment responsibilities;
  • The grandparents’ willingness not to interfere with the parents’ rearing of the child.

Usually grandparent visitation is not the equivalent of parental visitation.  Meaning grandparents will not get every other weekend under ordinary circumstances.

A Grandparent Visitation suit can also result in the Grandparents paying their own attorney fees PLUS those of the mother/father as  provided for in the statute.

Grandparents have rights in Mississippi to see their grandchildren.

**Grandparent Visitation is different from a grandparent seeking custody, which is a different standard and a blog for another day.

Matthew Thompson is a family law attorney and knows grandparent’s rights.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

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Divorce, Child Custody & Child Support, Alimony, Contempt, Modification, Youth Court, Adoption and Appeals.

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