Recently, I have been part of more discussions than usual about the propriety of having a minor child testify as a witness in a custody dispute or divorce matter. Generally, I advise clients to never use their child as a witness in a custody or divorce-related dispute. But, all of these recent discussions got me thinking: am I overly cautious?
When considering whether it is advisable to use your child as a witness in a family law matter, two questions are really being asked: (1) could you and (2) should you?
Whether or not a child could be called as a witness depends on whether they would be a competent witness. Does the child have personal knowledge about what they will testify to? Can the child accurately recall events they are being asked to testify about? Does the child understand the importance of telling the truth (or even the difference between the truth and a lie) and what the consequences would be for not telling the truth?
The more complex question is, should you ever, under any circumstances, call your child as a witness in a family law matter.
Though Michigan law allows a judge to interview a child in camera (meaning in the judge's chambers) without the parents or their attorneys present, that interview is limited to a determination of the child's preference regarding custody. So, set aside the question of whether a judge might interview a child in chambers regarding their custody preference. In my view, that is a different matter. I am talking about having your child testify as a fact witness to something they saw, heard, or, I suppose, felt.
I took an informal poll of experienced family law attorneys who practice in various counties across Michigan. I asked if there were any circumstances under which they would have a party's child testify as a witness (other than in camera) in the custody or parenting time dispute. Each of them said, unequivocally, that they would not. Here's why:
Testifying in court is stressful for adults, more so for a child. Cross examination can be brutal. The negative psychological impact of testifying against a parent in an emotionally-charged courtroom cannot be measured. At least one panel of the Michigan Court of Appeals has recognized the "emotional trauma" for the child in testifying in open court and the necessity to "protect the child from openly having to choose sides." Molloy v. Molloy, 637 N.W.2d 803, 805 (2001).
If the negative impact on your child is not enough, consider the court's response. Calling a child as a witness in a divorce matter is not viewed favorably by most judges. So, the parent who is willing to call their child as a witness is going to bear the brunt of that disfavor. Also, to the extent that the child has been "coached" to give certain responses, you can be almost certain that this will become obvious during cross examination.
Any parent considering calling their child as a witness in a custody or divorce dispute should think long and hard about the impact on their child.