In child custody disputes and visitation cases, the testimony of a minor can be an important component of a case. When a party requests child testimony, the judge is called upon to find the delicate balance between allowing the individual most affected by the proceeding to have a voice and protecting the child from the negative effects of being between two opposing custodians.
The guiding principal in all child custody proceedings is, of course, the best interest of the child and this standard also applies in a determination of whether to allow child testimony.
In addition, the inclusion of such testimony is governed by specific procedures to ensure the child's well-being and the integrity of the judicial process.
In this regard, West Virginia Code § 62-6B-4 provides the general rules for taking the testimony of a child witness even via closed-circuit television, if deemed necessary. When allowed, the testimony of young children is taken before the judge, usually with counsel present, but without the petitioner or the respondent. This helps to ensure that the child can testify in a manner that minimizes psychological trauma while maintaining the judge’s right to observe and hear the testimony.
If calling the child as a witness is precluded, the court shall explore alternative means of obtaining the child’s input. Such alternative methods may include:
The child’s participation in mediation;
The appointment of a guardian ad litem;
Other admissible evidence provided by the parties and witnesses that may constitute exceptions to the general prohibition on hearsay evidence.
When the Court Might Refuse Child Testimony
While the court generally allows children aged 14 and older to testify, there are exceptions. The court may refuse to accept a child's testimony if it determines that doing so is not in the child's best interests. This decision must be accompanied by specific reasons for the refusal. Factors that might lead to such a decision include:
Emotional or Psychological Impact: If the court believes that testifying would cause significant emotional or psychological harm to the child, it may choose to exclude the testimony.
Competency and Understanding: The court may assess, regardless of the child's age, whether the minor has the necessary mental capacity and understanding to provide reliable testimony. If the child is deemed incompetent or unable to comprehend the proceedings, their testimony may be excluded.
Influence and Coercion: If there is evidence that the child's testimony has been influenced or coerced by a parent or another party, the court may decide to disregard it to ensure a fair and unbiased decision.
Other restrictions on the testimony of children are outlined in the Rules of Procedure for Child Abuse and Neglect, Rule 8(a), which states that all children remain competent to testify in any proceeding before the court; however, it also creates a rebuttable presumption that the potential psychological harm to the child outweighs the necessity of the child's testimony. Further, the court may exclude the child's testimony if (A) the equivalent evidence can be procured through other reasonable efforts; (B) the child's testimony is not more probative on the issue than the other forms of evidence presented; and (C) the general purposes of these rules and the interest of justice will best be served by the exclusion of the child's testimony.
CONCLUSION
The testimony of minors in contested child custody cases is a sensitive and complex issue, often highly stressful for a child who is called to take sides in the middle of a dispute between their parents.
A structured approach and a careful evaluation of the matter at issue can ensure that the child's voice is heard while safeguarding their well-being.
If you are struggling with a custody dispute and need legal assistance to navigate the complexities of family law, book your free consultation on our website or call us at 304-780-3316!
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