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Qualification of Any Witness

In terms of qualification of a witness for any Court proceeding, Evidence Code Section 700 provides that "except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter." Evidence Code Section 701 provides that the exception to the rule of competency allowing for disqualification of a witness can only occur when he or she is "(1) incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) incapable of understanding the duty of a witness to tell the truth." So, it would seem on an evidentiary basis at least, almost any child who is able to tell the truth should be allowed to testify.

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"Special Care" for adolescent witnesses

Evidence Code Section 765(a) provides that trial judges have a general obligation to exercise reasonable control over the mode of witness interrogation so as to make it effective and yet, at the same time, protect the witness from undue harassment or embarrassment This duty is specially cast as to child witnesses under age 14. The Court must take "special care" to protect such witness from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. The Court must also take "special care" to ensure that questions are stated in a form that is "appropriate to the age of the witness." Evidence Code Section 765(b).

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Custody and Visitation Proceedings

In custody and visitation proceedings applying the "best interests of the child standard," the Court may actually preclude calling of a child as a witness and provide "alternative means" of obtaining information regarding the child's preferences. Family Code Section 3042(b). See also Marriage of Brown & Yana, (2006) 37 Cal. 4th 947, 964, fn. 11 [child's wishes relayed to court through appointed counsel's report of interviews with child]; Niko v. Foreman (2006) 144 Cal. App. 4th 344, 366, [court obtained child's views through appointed counsel and Evidence Code Section 730 mental health professional's report analyzing child's answers to questions about his preferences]. Another common method to obtain the children's preferences and input without the need to actually take the witness stand is for the trial Judge to have private in-chambers consultations with the child in a nonadversary atmosphere.

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Legal Disclaimer

The information and opinions expressed above are not intended to be relied upon as legal advice, or to establish an attorney/client relationship. If you are involved in a Family Law matter, you should seek competent counsel.