Tag Archives: testimony

Child Testimony and You

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 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? 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.

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Witnesses, Facts and What you are Told.

You’re entitled to your own opinion, but you are not entitled to your own facts.

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Testifying as a witness can be intimidating and scary. However, you do not have to let it get to you. Your job as a witness is to tell the truth, the whole truth and nothing but the truth. If you are testifying as a witness it is usually because you know something about the case and can help provide factual information. Your job as a witness, however is not to guess, speculate or even give your opinion, usually.

To be a good witness answer the question asked. Answer it with a “yes” or “no” or “I don’t know.” You may explain if you need to. Be direct. It is usually wise to only answer what is asked and it is also wise not to assume “facts” if you do NOT have personal knowledge of the underlying situation.

Also, someone telling you something does not make it a fact within your personal knowledge, even if they seem like they are telling the truth.

Matthew Thompson is a Family Law Attorney in Mississippi and reminds you to stick to the facts, just the facts.

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What is a Deposition?

A Deposition is an out of court, under oath interview of a party or witness. The questioning is done by the attorney of the party or witness.  The questions are about the pending case, including; fault or misconduct, money and financial matters, child related issues, and almost anything else that could lead to discoverable information.

A deposition allows you to find out the answer to questions that you may otherwise not know the answer to and allows for the attorney to ask “dumb” questions.

There is a lawyer cliché to never ask a question that you do not know the answer to. The way around this is to ask in the deposition. The deposition is typically not at the Court, but at the lawyer’s office or some other agreed upon place. The deposition is not seen by the Court, at least not automatically.

Depositions serve not only to provide an opportunity for answers, but also to create pressure. Pressure to settle, pressure to try to bring the pending matter to conclusion. Depositions can be long, difficult, embarrassing, but can also provide for closure, for a party to have their say, and to “clear the air.”

Matthew Thompson is a Family Law attorney in Mississippi and has spent more hours in depositions than he cares to admit.

Matthew@bowtielawyer.ms             (601) 850-8000

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