Home > Research Legal Advice > Domestic Violence > Can children (under 18) testify for or against a parent in San Bernardi...
Asked 6 months ago - Rancho Cucamonga, CA
FlagWife claims she was beaten all over body and slapped in face. Police took pictures of face with 2 minor scratches about 1/4 inch. No other pics taken because she claimed it's against her religion. No bruises. Husband asked for citizen's arrest for assault from wife. Wife was long-sheeted. Husband was arrested and taken to jail. Husband was released on bail. Both parties are accusing each other of assault and battery. What is the DA likely to do given that neither party has a prior arrest history? If she (the DA) proceeds, is she likely to call for the children to testify as witnesses?
Children unfortunately are witnesses to domestic violence matters. As long as the child has the capacity to understand the obligation to tell the truth, the child may offer testimony. The DA will need to consider the age of the kids. Generally speaking, six or seven years old is about the youngest a child witness is assumed to understand the obligation to tell the truth.
The fact that neither party has a criminal history is significant, but not a bar to prosecution. There is no "first one is free" rule.
The DA may have a heart and realize the destruction to the family that will result if the kids must testify, but divorce may be inevitable already. If it appears the family is determined to stay together, the DA might want to promote this by removing the kids as spoilers to the reunification. While this is arguably "playing God," it does happen, especially around this time of year with Christmas spirit an influence.
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