Can Children Testify in Family Court?

Family Court has an unwritten rule that minor children should rarely, if ever, be forced to testify in any hearing. The logic behind this proposition is all too obvious. By placing a child on the witness stand, an attorney is forcing that child to choose between parents.

In terms of qualification of a witness for any Court hearing, Evidence Code Section 700 provides that “[e]xcept as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” Evidence Code Section 701 provides that an exception to the rule of competency allowing for disqualification of a witness can only occur when the witness is “incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or incapable of understanding the duty of a witness to tell the truth.” So, it would seem on an evidentiary basis, almost any child who is able to tell the truth should be allowed to testify. Not so in Family Court.

In all Court hearings, trial Judges have a general obligation to exercise reasonable control over the mode of witness interrogation so as to make it effective and yet, at the same time, protect the witness from undue harassment or embarrassment. This duty is specially cast as to child witnesses under age 14. The Court is required to take “special care” to protect such witness from undue harassment or embarrassment and to restrict the unnecessary repetition of questions. The Court must also take care to ensure that questions are stated in a form that is “appropriate to the age of the witness.”

In custody and visitation proceedings applying the best interests of the child standard, the Court may actually preclude the calling of a child as a witness and provide alternative means of obtaining information regarding the child’s preferences. A child’s wishes can be relayed to the Court through appointed counsel or via a mental health professional. Another common method to obtain the child’s preferences, without the need to actually take the witness stand, is for the trial Judge to have private in-chambers consultations with the child.

Although children may have the most critical information to give a trial Judge, the risks of forcing them to testify often outweigh the benefits. One might place this proposition into the context that a child’s testimony may seem “critical” at the time of the Court proceeding, but a lifelong healthy relationship of a child with both parents often outweighs that transitory interest. Judges are sometimes the only people able to recognize that.