Custody Proceedings - Evidence - Child as a Witness
A child may be called to testify as a fact witness in a custody case but such a practice should be used sparingly and only when absolutely necessary.[1] It has been said that calling a child to testify in a custody proceeding is generally neither necessary nor appropriate. [2]
Courts have allowed a child to testify as a fact witness in the presence of counsel, but not the parties.[3]
[1] In Matter of John V. v. Sarah W.,143 AD3d 1069, 39 N.Y.S.3d 310 (3d Dept., 2016) a custody modification proceeding, the mother argued that Family Court committed reversible error by allowing the child to testify as a fact witness in the presence of counsel but not the parties, and by not sealing the child’s testimony. Although this argument was not preserved for review, the Court took the opportunity to underscore the importance of protecting a child’s right to confidentiality, which is paramount and superior to the rights of the parties. Even if, as occurred here, a child assents to his or her testimony being shared with his or her parents, Family Court must not put a child in the position of having his or her relationship with either parent further jeopardized by having to publicly relate his or her difficulties with them or be required to openly choose between them. Moreover, because the mother corroborated the father’s hearsay account of the incident that occurred between the child and her fiancé, it perceived no reason for the child to have testified as a fact witness and reiterated that such a practice should be used sparingly and only when absolutely necessary.
[2] In Matter of Rutland v O’Brien, 143 AD3d 1060, 41 N.Y.S.3d 292 (3d Dept.,2016) the Appellate Division observed, in a footnote, that during the trial testimony of the children, who were called as witnesses by the father, the parents remained outside the courtroom, but the record was not sealed. The children were required to testify at length, subject to extensive cross-examination by counsel, as well as extensive questioning by Family Court. It emphatically reemphasize[d] that calling a child to testify in a Family Ct Act article 6 proceeding is generally neither necessary nor appropriate. It noted that to the extent that the children were questioned as to their preferences, by all counsel and the court, such questioning should have been confined to the Lincoln hearing.
In Reed v. Reed, 189 Misc. 2d 734, 734 N.Y.S.2d 806 (Sup 2001), the court denied the father's motion to have his six-year-old child testify in open court on the issues of custody and marital fault. The Court went on to state that the preferred practice in a custody/visitation case, in order to determine best interest, is to have an in camera interview with the child on the record in the presence of the attorney for the child. It noted that the Appellate Division in Pascuzzo v Pascuzzo (55 AD2d 947 [2d Dept 1997]) held that where trial court, in chambers, ascertains that testimony of the parties' children would be on the issue of cruel and inhuman treatment in a case where defendant previously admitted certain acts of cruelty, trial court properly excluded children's anticipated testimony as immaterial.
[3] See Matter of John V. v. Sarah W., 143 AD3d 1069, 39 N.Y.S.3d 310 (3d Dept., 2016); Matter of Rutland v O’Brien, 143 AD3d 1060, 41 N.Y.S.3d 292 (3d Dept., 2016).
A child may be called to testify as a fact witness in a custody case but such a practice should be used sparingly and only when absolutely necessary.[1] It has been said that calling a child to testify in a custody proceeding is generally neither necessary nor appropriate. [2]
Courts have allowed a child to testify as a fact witness in the presence of counsel, but not the parties.[3]
[1] In Matter of John V. v. Sarah W.,143 AD3d 1069, 39 N.Y.S.3d 310 (3d Dept., 2016) a custody modification proceeding, the mother argued that Family Court committed reversible error by allowing the child to testify as a fact witness in the presence of counsel but not the parties, and by not sealing the child’s testimony. Although this argument was not preserved for review, the Court took the opportunity to underscore the importance of protecting a child’s right to confidentiality, which is paramount and superior to the rights of the parties. Even if, as occurred here, a child assents to his or her testimony being shared with his or her parents, Family Court must not put a child in the position of having his or her relationship with either parent further jeopardized by having to publicly relate his or her difficulties with them or be required to openly choose between them. Moreover, because the mother corroborated the father’s hearsay account of the incident that occurred between the child and her fiancé, it perceived no reason for the child to have testified as a fact witness and reiterated that such a practice should be used sparingly and only when absolutely necessary.
[2] In Matter of Rutland v O’Brien, 143 AD3d 1060, 41 N.Y.S.3d 292 (3d Dept.,2016) the Appellate Division observed, in a footnote, that during the trial testimony of the children, who were called as witnesses by the father, the parents remained outside the courtroom, but the record was not sealed. The children were required to testify at length, subject to extensive cross-examination by counsel, as well as extensive questioning by Family Court. It emphatically reemphasize[d] that calling a child to testify in a Family Ct Act article 6 proceeding is generally neither necessary nor appropriate. It noted that to the extent that the children were questioned as to their preferences, by all counsel and the court, such questioning should have been confined to the Lincoln hearing.
In Reed v. Reed, 189 Misc. 2d 734, 734 N.Y.S.2d 806 (Sup 2001), the court denied the father's motion to have his six-year-old child testify in open court on the issues of custody and marital fault. The Court went on to state that the preferred practice in a custody/visitation case, in order to determine best interest, is to have an in camera interview with the child on the record in the presence of the attorney for the child. It noted that the Appellate Division in Pascuzzo v Pascuzzo (55 AD2d 947 [2d Dept 1997]) held that where trial court, in chambers, ascertains that testimony of the parties' children would be on the issue of cruel and inhuman treatment in a case where defendant previously admitted certain acts of cruelty, trial court properly excluded children's anticipated testimony as immaterial.
[3] See Matter of John V. v. Sarah W., 143 AD3d 1069, 39 N.Y.S.3d 310 (3d Dept., 2016); Matter of Rutland v O’Brien, 143 AD3d 1060, 41 N.Y.S.3d 292 (3d Dept., 2016).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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