Children are quite often witnesses in domestic violence cases. Although not having a criminal history can sometimes result in charges not being filed, that is not always the case. A lack of criminal history is no guarantee that charges are not going to be filed.
The above information does not establish an attorney client relationship nor is it meant to provide legal advice.
Children can testify in any court in the State of California.
The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.
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.
Children can and often testify in domestic violence cases. Nobody likes to place children in the middle but the US Constitution says you have a right to call witnesses on your behalf and cross exam those testifying against you.