Child Testimony in Family Law Cases

In most family law cases children are seldom asked to testify because of unreliability. But, in some cases a teenager may be called to testify in situations such as; when a teenager wants to live with a different parent, where a parent has made serious accusations about the other parent and the only witness is the child, an enforcement action, or a custody or termination where the child wants to testify.

How is a child called to court?

If you know that you will be calling a child to testify in a case, it is good practice to notify the judge in advance. Most of the time lawyers will serve subpoenas to the parent of the child. This is the most common way because the parent will be actually driving the child to the court The judge can be specific about the provisions of the subpoena, providing guidance on who will bring the child to the courthouse, where the child is to go when he or she gets there, and who can talk to the child before giving the testimony.

Is the child competent?

As earlier stated, children are seldom called as witnesses because of their unreliability. Texas Rules of Evidence 601 explains that if a child does not posses sufficient intellect to the subject matter they are then deemed incompetent and unable to testify. The Texas Appeals case, Reyna v. State, came up with three elements that can determine child competency (1) the competence to observe intelligently the events in question at the time of their occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate them, which involves the ability to understand the questions asked and to frame intelligent answers, and the ability to understand the moral responsibility to tell the truth.

No set procedure to determine competency has been laid in place with the courts. The person arguing that the child is not competent has the burden to establish proof that he or she is not competent. The party can file a motion to strike a child’s testimony before the trial and have the matter resolved before the trial begins.

The party proving that the child is competent to testify can do so by calling a mental health worker, parent, or teacher to testify to the child’s competency.

How should I prepare the child prior to their testimony?

The attorney should begin preparing the child weeks before trial. To help the child feel more comfortable, the attorney should have the child visit the courtroom and become familiar with how the process will work. The attorney should inform the child of each step of the process, such as taking the oath and the questioning process, so the child will be prepared and lessen the chances to be taken by surprise.

To help lower anxiety, courts have allowed for a screen to be put up so the child cannot see their parents when testifying to help lower intimidation. Also, if the child has a counselor, they can be allowed to accompany the child to help minimize the stress of the situation.

Does the child’s testimony have to be given live in court?

No. A child can tell the judge or jury their story outside of the courtroom. The child can be interviewed in the judge’s chambers provided by Section 153.009 of the Texas Family Code. In summary, this Section provides that, (1) a judge shall interview a child 12 years or older to determine residence when requested by a party or amicus attorney, (2) a judge may interview a child under 12 about primary custody, (3) a judge cannot interview a child in a jury trial when an issue is being determined by the jury, (4) a judge can interview a child of any age with issues regarding visitation, injunctions or other issues that involve the child, (5) the judge shall make a record of the in chamber interview if a party or amicus attorney requests it, (5) the judge can decide who will be present during the interview in chambers.

The Texas Family Code allows other ways to present a child’s testimony. A videotaped statement of a child under 12 made under certain conditions, playing pre-recorded sworn testimony of a child recorded outside of the courtroom, or allowing the child to testify via close circuit television from a location other than the courtroom are others ways to have the testimony presented to the court. Courts have also allowed an expert to testify before the court what the child has told them or also through a child counselor or therapist.

An amicus attorney has been mentioned several times above. An amicus attorney is appointed by the court to represent the best interests of a child and is generally not allowed to testify to the child’s statements. But, the attorney can question another witness in the case using questions to get the same information across to the court.

There are many reasons to call or to not call a child as a witness in a family law case. But, just as in all situations involving children in family law cases, the best interest of the child will always be the primary focus when determining if the child should or should not testify.