By: Daniel B. Schy
Fewer decisions give rise to more consternation and uncertainty than whether to have a minor child testify in a custody matter. The reasons are manifest: involving a minor child in the custody process can have far-reaching implications for the child or can negatively impact the child’s relationship with his/her parents, and the mere decision to have a child testify can impact the decision of the court. Reflexively, we advise most clients against children testifying because of these concerns. But what about in cases of parental alienation? What about cases involving allegations of abuse?
There are, of course, certain circumstances that demand a child’s testimony, even though we know most judges and lawyers prefer to avoid it. Proving sexual abuse against a child – at least with a competent attorney on the other side – typically requires the child’s testimony. Unlike verbal or other physical abuse, sexual abuse often occurs under a cloak of total secrecy and may leave behind no physical evidence. And in other cases, the circumstances (a parent seeks to relocate, and alleges the child also wishes to do so) or age (a sixteen-year-old child who’s stated a strong preference) might dictate that his/her testimony should be offered.
But even after making that decision, we face another question: Can the Court refuse to hear the testimony of a minor child? Like so many questions in family law, the answer is a resounding maybe.
No explicit statutory basis exists prohibiting the testimony of minor children in custody cases. In fact, the opposite is true: §8.01-396.1 of the Code of Virginia, in a rare demonstration of brevity, states in its totality that “No child shall be deemed incompetent to testify solely because of age.” The statute codifies that which had long been part of the common law: “There is no fixed age at which a child must have arrived in order to be competent as a witness. Of course, no one would think of calling a child two or three years in age as a witness in a case, but the whole question of competency must be left largely to the discretion of the trial court, and its judgement will not be reversed except for manifest error.” Rogers v. Commonwealth, 132 Va. 771 (1922). While a child’s competency may be at issue (as will be discussed below), age alone remains an insufficient basis for preventing a child’s testimony.
The best argument in support of the notion that trial court could refuse to hear a minor child’s testimony arises from language in §20-124.2(A) and (B) of the Code of Virginia, though neither explicitly grants the authority to deny a minor child’s testimony. Here, the statute dictates that the “procedures for determining custody and visitation arrangements shall, insofar as is practical, and consistent with the ends of justice, preserve the dignity and resources of the family.” Whether this language grants the trial court sufficient latitude to prevent a minor child from testifying remains uncertain, but a reasonable, colorable argument can be made. Even more broadly, §20-124.2(B) states that in “determining custody, the court shall give primary consideration to the best interests of the child.” Read broadly, the provision would give the trial court the leeway to deny the testimony of a minor child (and, that, perhaps, reveals the inherent weakness of this argument, as that broad an interpretation of this statute would grant the trial court virtually unrestrained discretion).
Beyond that, various statutes implicitly suggest that minor children should be able to testify. §20-124.2:1 of the Code of Virginia establishes the procedure for conducting in camera interviews of a child, and – perhaps most relevant to this discussion – §20-124.3(8) mandates that the trial court consider the reasonable preferences of a child. With certain exceptions, establishing this preference would be virtually impossible without the child’s testimony unless the trial court were to abandon all pretense of enforcing hearsay objections. Without direct testimony from the child, the trial court would be left with only the ability to hear circumstantial evidence that often proves little help (the child appears happy or excited when he/she returns to his primary home, the child cries when he/she gets in the car immediately before visitation, etc.). Failure to consider one of the ten statutory factors would likely result in reversible error. Here, it’s worth noting the similarities between the statutory language and case law regarding the capacity of a child to testify. The eighth factor of §20-124.3 obligates to the trial court to consider the reasonable preference of the child if the child is deemed to be “of reasonable intelligence, understanding, age and experience.”
The only explicit basis for preventing a child’s testimony exists when a child is determined to be incompetent to testify. Though much of it arises from cases involving children testifying in criminal cases, Virginia law clear establishes the method by which the trial court should determine competency. To establish a child’s competency, “the child must have sufficient mental capacity to observe the data about which it has testified and record it in mind, and thereafter understand questions put to it and be able to intelligent answers. There must also be a sense of moral responsibility, at least to the extent of a consciousness of duty to speak the truth.” Rogers v. Commonwealth 132 Va. 771 (1922). If a child “possesses the capacity observe events, to recollect and communicate them, and had the ability to frame and make intelligent answers, with a consciousness of the duty to speak the truth,” then he/she is competent to testify. Cross v. Commonwealth, 195 Va. 62 (1953). The trial judge considers his or her observations of the child, the child’s age, the child’s intelligence, and the child’s sense of moral and legal responsibility. Greenway v. Commonwealth, 254 Va. 147 (1997).
When a minor child does testify, the specific procedure for the testimony falls within the discretion of the trial court. Recalling §20-124.2(A), whether to take testimony in camera probably falls more squarely within this statute. Haase v. Haase, 20 Va.App. 671 (1995), provides specific guidance in this area. While acknowledging parents’ due process concerns, the Hasse court was not “persuaded that reaching the goal of providing an appropriate balance between protecting the interest of the children and the procedural rights of their parents in resolving custody disputes is facilitated by a set of bright-line rules applicable regardless of the circumstances of individual cases. Rather, in determining how to proceed with the from children in custody cases, the judicial officer…should consider the facts and circumstances of the particular case.” The Court of Appeals further articulated that the trial court should, among other possible factors, consider “the age and maturity of the children, the matters to be brought forth in testimony, the acrimony between the parents, and the likelihood of improper influence by one or both of the parents on the child’s testimony.”
Taking these factors, and others as may be appropriate, the trial court “should then determine the method of receiving evidence which serves the best interest of the children while preserving to the greatest extent possible the procedural rights of the parents.” And, while declining to establish a bright-line rule, the Haase court did enunciate a preference that that counsel be permitted to be present during any in camera interview. When the trial court nevertheless elects to conduct in camera interviews outside of the presence of the parties or their counsel, §20-124.2:1 mandates that courts of record must prepare a record, that the record must be made a part of the case, and that the cost of creating such a record will be passed to the parties.
But like so many areas of family law, there’s the legal answer and there’s the practical answer. While there may be no explicit statutory basis for excluding a competent child’s testimony, the trial court isn’t without tools to effectuate its will. As alluded to earlier, nothing prevents the trial court from taking into consideration the decision of a parent to have his/her child testify. It doesn’t take a seasoned family law lawyer to apply a parent’s decision to compel a minor child’s testimony to the best interest factors, and the trial court could find that doing so impacts its analysis of that parent’s ability to assess and meet the child’s emotional needs (Factor 3 in §20-124.3), that parent’s ability to support the child’s relationship with the other parent (Factor 6 of §20-124.3), and that parent’s ability to maintain a close and continuing relationship with and resolve disputes relating to the child (Factor 7 of §20-124.3). The trial court also has within its discretion the ability to continue the trial in order to appoint a guardian ad litem for the child, the threat of which often accomplishes the purpose of preventing the child’s testimony.