Can your child testify or write a declaration in your Washington divorce or family law matter? It is a good question for several reasons.
Many custody litigants will recognize this scenario: Jane’s husband repeatedly and flatly lied in gaining primary residential care of the parties’ eight- and nine-year-old daughters. He claimed to cook the majority of their meals, wash their clothes, read to them . . . the fabricated list went on and on. Few witnesses could contradict him because he maintained a convincing façade for family and friends. The only third-party witnesses who knew the truth were the parties’ daughters, and Jane’s attorney declined to offer the young girls’ testimony. Her attorney said testimony from “kids is usually inadmissible.”
Jane’s attorney is correct in a sense, but also wrong. Judges and commissioners frown upon parties who present testimony from their children. The mere act of asking the child can reflect extremely poorly upon the parent in question. Courts have a strong dislike for “putting children in the middle“, and some Washington State counties require parties to take a parenting class on this. King County has a local rule discouraging declarations from the parties’ children in family law matters. Involving the children in the parent’s disputes can even rise to the level of a 191 factor finding against the poorly behaving parent.
But testimony from kids is not necessarily inadmissible. In 2010 the Washington Supreme Court’s opinion in State v. S.J.W., 170 Wn.2d 92 clarified that children are presumptively competent to testify. As the Court wrote: “A six-year-old child . . . may be more competent to testify than an adult in a given case; no court should presume a child is incompetent to testify based upon age alone . . . . [W]e hold that courts should presume all witnesses are competent to testify regardless of their age.” The Court buttressed its opinion with comparable federal law.
At a 2011 Family Law Evidence CLE in Snohomish County, commentator Karl Tegland stated witnesses over the age of four tend to survive competency challenges in Washington. An audience member responsively chortled that no Snohomish County family law “commissioner would leave an attorney with a shred of dignity” if the attorney tried to submit a declaration from a child that age. Other attendees shared the vocal audience member’s reservations about child testimony. Obvious practical and public policy concerns have given local courts and practitioners good reason to avoid child testimony, especially in family law hearings where parties submit evidence by declaration.
However, the S.J.W. case, federal law, and Tegland’s comment suggest the perceived value of child testimony is overcoming many of those concerns in other venues and jurisdictions. Eric Johnson, a Utah attorney, wrote the following in defense of the child depositions he conducts: “The real reason people don’t want children deposed . . . is because children, by their virtue of being young, and thus inexperienced and naïve, have a lot harder time being clever and evasive. People who don’t want children deposed object because a child’s testimony quite often has real evidentiary value that is damaging to the case of those who object to the child’s deposition.”
For better or worse, attempts to offer the testimony of younger children may be coming. In the meantime, there are safer alternatives for parents hoping to introduce evidence through their children. The most common practice is to request appointment of a Guardian ad Litem (GAL). A GAL investigates custody concerns, typically interviews the children, and reports any particularly relevant findings to the court. GALs rarely ask children emotionally challenging questions about parties’ wrongdoing, but sometimes the truth comes out. Another option is to put the children in counseling. The therapist’s records sometimes reveal relevant evidence about custody, and occasionally therapists agree to testify. The third option is to ask the trial judge to interview the children. If the judge agrees (which he or she likely will not), he or she can personally pose questions without cross examination, allowing the judge full control and reducing the children’s exposure to conflict.
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