Tag Archives: child testify

Child Custody, Divorce, General Legal, Marriage, Modifications, Opinion

Child Testimony No-no; When having your child testify is the Wrong move.

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Sometimes family law is the pits.

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You are in the fight of your life against the one person who promised before God and everybody to always love and cherish you. Where’s the love now?

But dragging others into the fight may be the wrong move. I routinely see parents wanting to bring the kids in to testify, while stating that they do not want to bring the kids in to testify. Kind of a sorry-not sorry attitude.

Child testimony is permissible.  There are some Gate-keeping obligations of the Court to apply prior to actual testimony being allowed. There are also various methods used by various Judges on taking child testimony. However, more basic than the trustworthiness of the testimomy and whether it should be in chambers or in open Court, is whether the child should be in that position at all.

The Mississippi Supreme Court stated, “We reiterate that parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage…as witnesses, and counsel should advise their clients against doing so except in the most exigent cases.” Jethrow v. Jethrow, 571 So. 2d 270, 274 (Miss. 1990).

If there are not exigent circumstances, i.e.; abuse, criminal activity involving the child, physically dangerous activity and there is no other means to corroborate these facts, testimony may be required, but if it’s run of the mill dad did this or didn’t do that, or dad let the girlfriend give her a makeover, or mom’s boyfriend took them to Chik-fil-a, and these persons are not dangerous persons nor prohibited from being around per a Court Order, child testimony should be avoided.

Think about it from the child’s perspective, not your own. Your job is to do what is best for them, every time.

Matthew Thompson is a Child Custody attorney and cautions you on relying on child testimony when it’s not necessary.

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

Child Custody, Divorce, humor

When a Child testifies, You May Not get what you Intended.

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“Well, let’s just ask little Johnny what he wants!”

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“[P]arents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage…as witnesses, and counsel should advise their clients against doing so except in the most exigent cases.” Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990).“

The Mississippi Supreme Court added that the reason and wisdom for this precaution needed no amplification as to why you should not compel your child to testify if it can be avoided.

The potential for emotional trauma is a given. But, another unstated reason a la Forrest Gump, “you never know what you are gonna get.“

In a particularly acrimonious custody case, the mother insisted on calling the 6 year old daughter to testify. She wanted her to say she wanted to live with mom. Mom had recently redecorated her room in pink and butterflies. However, when questioned she responded as follows;

Court: If you had a magic wand and you could wave it and live wherever you wanted, where would that be?

Child: A Castle!

Not mom’s, not dad’s, but a castle.

Matthew Thompson is a Child Custody  Attorney in Mississippi and would also like to live in a castle.

Follow the blog: #BowTieLawyer . You may also contact Matthew with your family law case or question at (601) 850-8000 or Matthew@bowtielawyer.ms

 

Child Custody, Divorce, General Legal, Modifications, Visitation

Child Testimony in Court

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Whether a child should testify is a struggle in every instance when it arises.  I have previously blogged on the law, the Jethrow standard that the Court applies in determining the process of a child testifying.  (Click here).  Today’s is a practical view on how the Court conducts children testifying in a Civil case.

So, how does child testimony work?  Ultimately, it depends on the Judge.  I have seen the following;

1)  The Judge clears the Courtroom of all persons except the Judge, the Court Reporter and the child.

Here the Judge does the questioning.  The Judge is trying to determine the child’s truthfulness, their intellectual capacity for the retaining and reporting the information sought and whether is admissible and relevant.  This process takes as long as the court deems necessary.  I have stood in the hall for an hour while the Court conducts the interview.  Upon the Court concluding, the parties and lawyers are brought back in and the Judge summarizes the child’s testimony.  There may or may not be an opportunity for questioning.

2)  The Judge takes the child and the Court reporter to his/her chambers (office).

Again the Judge does the questioning, but it is in a less intimidating setting.  The judge’s office is usually much more “familiar” and personalized than the Courtroom.  Judge’s do this to put the child more at ease.  The relative same process of above is used, just in a different location.

3)  The Judge, the lawyers, the child and Court Reporter go into the Judge’s chambers.

Here the Judge let’s the lawyers do the questioning.  Now, the Judge is making sure that the lawyers maintain a respectful and appropriate tone and the child is not subject to interrogation or cross-examination in the true sense of the word, but the child is responding directly to the lawyers.  The Judge determines what is relevant and admissible in all instances.

And finally,

4)  The child takes the witness stand and is questioned by each lawyer and possibly the Judge, in the presence of the parents.  For a very young child this procedure will not be used.  For an older child, say 14 and up, this is more common.

Ultimately, the age of the child, the issues at hand and the wishes of the parent’s are the deciding factors in how the child testimony is handled.  The famous quote from the Jethrow case is;

“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).

Matthew Thompson is a Child Custody Litigation Attorney in Mississippi.

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

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