Swearing in Tommy: Should children testify? (Part 2)

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is Part 2 of a three-part series on children testifying. Click here to read Part 1 and click here to read Part 3.

Have you ever struggled over whether your child can, or should, testify? And what happens to him if he does? Can you ever guarantee your child’s words to the judge are what they tell you at home? 

And what if your spouse planted thoughts? How can you protect your rights? Can you?

You are not alone. Here are some suggestions.

Preference Testimony: Pick a Parent

But what about sitting little Billy or Susie up in the witness box, barely able to see past the ledge, the judge peering down, the attorneys scribbling furiously questions to ask, to find out which parent is preferred? (Enter sinking hearts and that dread felt in the stomach here.) Should that child be sworn to testify truthfully, then forced to look his parents in the eyes and recite, to the whole world and these strangers in the courtroom, which parent he likes more? Seems utterly ridiculously, for several reasons.

First, from a parent’s perspective, no parent would let his child go through the pain of having to pick one parent over the other, of having to disappoint one, of having to twist and turn in the witness box and with a eeny meeny miney moe  pick where he will live.

Second, from a legal perspective, desires (where one would like to be) are not the stuff of traditional testimony. Traditional testimony focuses on firsthand knowledge, experience, of past events: what the witness saw, heard, felt, did, smelled, tasted, etc. These are concrete facts and, to a certain extent, when corroborated or offered from trusty sources to be relied upon. Desires, however, are transient and speculative. They do not feel as sturdy, as reliable, because by their very nature they change. In fact, evidentiary rules exclude speculative evidence for this reason. 

Nevertheless, child custody statutes routinely require the fact-finder to consider the child’s preferences. Despite their speculative nature, preferences are important to the case – and to parents’ rights. Therefore, state rules for preference testimony strike a balance between protecting children from the pain of having to choose and ensuring their preference testimony is reliable, or as reliable as can be. 

In Oklahoma, for example, for any proceeding to determine custody or visitation, the judge must determine whether permitting the child to state a preference is in the child’s best interests.43 Okl St § 113.

Furthermore, if the judge determines that the child is of a sufficient age to form an intelligent opinion, the judge must consider the preference in rendering the custody or visitation decision. Id. If the judge decides against the preference, the judge must make specific finds of fact, on the record, to support the judge’s decision. Id. There is no bright-line rule as to what age is a “sufficient age,” but the law does provide a rebuttable presumption that children age twelve and older are of sufficient age. Id.

Even though the preference may be dispositive, the judge need not allow the parents to cross-examine the child, or even listen to the child. The law permits the judge to elicit the child’s preference testimony in chambers without the parents or other parties present. Id. However, if attorneys are not allowed to be present too, the judge shall state, on the record, the reasons for their exclusion, and at either party’s request the just shall order a record made of the in chambers testimony. Id.

By comparison, Minnesota judges must allow parents’ attorneys to be present if the judge decides to elicit the child’s preference testimony in chambers. Minn Stat § 518.166. The judge must also allow the attorneys to ask the child questions, either directly or through the judge. Unless waived, each parent is entitled to a copy of the in chambers transcript for use in open court. Id.

The process is similar in Utah, but the court need not elicit the child’s preference at all. Rather, the judge may inquire of the child and take into consideration the child’s desires regarding future custody or visitation, but the expressed desires are not controlling. Utah Code Ann 30-3-10. The judge must give added weight to desires from children age sixteen or older, but not controlling weight. Id. The judge may ask the parents’ permission before speaking to the child, but need not get their permission if the judge determines an in camera interview is the only method to elicit the child’s actual preference testimony. Id.

Camera interviews are, by their nature, secretive. Sure, a court reporter may record the discussion for parents’ review, but not being present, to watch their child, to hear the questioner’s tone and see the child’s reaction, bothers parents to no end. That is a normal reaction when custody rights are at stake. It is difficult, if not impossible, to interpret the import of statements in a transcript without having live testimony to compare. That is one of the reasons appellate courts defer to trial courts’ findings of facts and credibility determinations. That sense of control over the case – of knowing who said what when, why and how – evaporates. The child could say anything. Or precisely what the parent wants.

Note: This is Part 2 of a three-part series on children testifying. Click here to read Part 1 andclick here to read Part 3.


Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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