Does My Child Have to Testify in My Divorce Trial?

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Does My Child Have to Testify in My Divorce Trial?

“Man was sort of evoluted. From the Old World Monkeys.” So says Howard Blair, child on the witness stand, in the play Inherit the Wind. The play gave way to a fine movie, but it is still produced as a play and audiences still get to see a little child on a witness stand. The sight is unsettling; children are innocents, not meant to be subjected to cross-examination and the antics of attorneys, right? It may nag at you: is your child going to have to testify on the stand in your contested divorce proceeding?

Preserving Innocence (and Predictability)

Your wife may want to put Junior on the stand so Junior can tell your wife’s attorney (and the whole court) what a scoundrel you are. You may think, Junior’s only seven — he does not understand. He is hardly competent to be a trusted witness.

You would be wrong. Virginia law specifically states, “No child shall be deemed incompetent to testify solely because of age.” You can be sure your wife’s attorney knows Virginia Code § 8.01-396.1, and knows exactly how to ask questions to get Junior to say something that will make you look bad.

Your lawyer should object to having Junior on the witness stand, though, even if Junior is viewed as competent. Children are notoriously unpredictable on the witness stand and can be easily swayed by lawyers’ deliberately confusing questions.

One objection your attorney could raise is about your own child’s intelligence, not competence. In Kiracofe v. Commonwealth, 198 Va. 833, 840, 97 S.E.2d 14, 18 (1957), the court found a child could testify if he or she:

  • had a sense of moral responsibility
  • had the mental capacity to observe events related to testimony
  • could remember those events
  • could understand the questions an attorney put to her
  • could answer those questions
  • understood truth from lies

Your attorney may try to sway a judge that your child is, to be blunt, not intelligent enough to be a credible witness. This may sound harsh, but it may be better that a few people think your kid’s bulb is not so bright than being subjected to taking the stand.

Alternatives to Your Child Getting on the Witness Stand

18 U.S. Code § 3509 provides at least two ways your child could be a witness in your divorce without the emotional torment of appearing on a witness stand:

  • Live testimony via a two-way, closed circuit television — Here the judge may simply put the child in a comfortable room with a Guardian Ad Litem from Virginia Child Protective Services (or a court officer), then allow both attorneys and the judge to pose questions by camera
  • Videotaped deposition — Though intended to be used for criminal proceedings, this aspect of the law allows your attorney to depose (interview) your child on a videotape that can be entered as evidence and viewed by all in the courtroom, but your wife’s attorney would not have the ability to cross-examine your child

This practice is carried through in Virginia Code under § 18.2-67.9 (for criminal actions) and for § 63.2-1521 (for juvenile issues like child abuse and neglect). It also applies to Virginia divorce proceedings.

For All That is Good and Right, Spare the Child

Unless you are desperate to push back against unfounded allegations of sexual abuse or something similarly horrific, you and your attorney should strive to keep your kids off the witness stand.

This not only spares your child the emotional turmoil of answering questions from strangers in suits, it also prevents the child from unintentionally impugning you as a parent:

Attorney: Would it be correct to say your father has stopped beating you?
Child: No.
Attorney: No, that would not be correct, or no, he has not stopped beating you?
Child: No, he has not, because he —
Attorney: So are you saying that your father regularly beats you?
Child: No, he does not regularly beat me.
Attorney: So he beats you but not all the time?
Child: Yes. Wait. No, he — I am confused.

And your wife’s attorney has planted the seed of doubt.

Judicial Discretion in Virginia

Sensible Virginia judges tend to avoid putting children in the midst of adult issues, for the good of the children. The judges know children’s testimony is often unreliable, and in the heat of a divorce a well-meaning child may say something untrue but damaging. Imagine the effect of hearing your young daughter telling the court, “Dad loves me so much he won’t let me leave the house.”

While, legally, your child can testify in both criminal and civil hearings, your divorce attorney can help you determine if such testimony would help or hurt you. Your attorney also has a duty to help protect your child from being called to the stand if you or your attorney are concerned about the emotional toll the testimony would take.

Call the Trial Tested Men’s Divorce Attorneys

Your call to The Firm For Men at 757-383-9184, or your contact online, can put you in touch with a Virginia divorce attorney who can guide you through the wrenching decisions about your child and your Virginia divorce. We protect men’s rights, yes, but we protect the rights of Virginia’s children, too.

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