Child Custody in Divorce: Children's Testimony
Under the Rules of Evidence, statements from your children constitutes hearsay. In other words, you cannot testify as to what the children tell you or what really transpires with the children in your home. If your children testify, here is an overview of the procedures and case law.
Impact of Child's Preference on Court's Determination.Maryland case law and statutes are clear that the Court must consider the children's preferences in determining custody. Therein, the Court can determine weight to give the child's preference:
"[I]n determining in a contest for custody what will promote the best interests of the child, the child's own wishes may be consulted and given weight if he is of sufficient age and capacity to form a rational judgment. There have been occasional references to an English rule that 'the wishes of a child under the age of nurture, which is 14 years, are not to be consulted as to its custody against the claim of its guardian by nurture'. Ex parte Reynolds, 73 S.C. 296, 53 S.E. 490, 493, 114 Am.St.Rep. 86. But we adopt the rule that there is no specific age of a child at which his wishes should be consulted and given weight by the court. The matter depends upon the extent of the child's mental development. The desires of the child are consulted, not because of any legal right to decide the question of custody, but because the court should know them in order to be better able to exercise its discretion wisely. It is not the whim of the child that the court respects, but its feelings, attachments, reasonable preference and probable contentment." Ross v. Pick, 199 Md. 341, 353 (1952) (emphasis added).
Further, "[t]he trial court has the "discretion to interview a child." Marshall v. Stefanides, 17 Md.App. 364, 302 A.2d 682 (1973). "In disputed custody cases, the court has the discretion whether to speak to the child or children and, if so, the weight to be given the children's preference as to the custodian." Leary v. Leary, 97 Md.App. 26, 36, 627 A.2d 30 (1993) (citing Casey v. Casey, 210 Md. 464, 474, 124 A.2d 254 (1956)). (emphasis added)
Karanikas v. Cartwright, 209 Md.App. 571, 590 (2013) holds that "[t]he trial judge has discretion to decide whether to conduct a child interview. The trial judge exercised this discretion by electing to hear other testimony first in order to determine whether the child's testimony would be useful. The trial judge later considered Father's arguments and ultimately decided to interview the child in chambers." Id. at 595. The Court of Special Appeals held that the trial court did not err in handling the issue of interviewing the child in this manner.
When determining whether to hear the testimony of a child, it is error for the Court to not at leastIn Brandau v. Webster, 39 Md. App. 99 (1978), the court refused to hear testimony from the 6 year old child, Erika, of the parties in determining the custody of the two oldest children (the court did hear, and weigh heavily, the testimony of the two older children who were 16 and 15.5 at the time).
On appeal, the Court stated that "[t]he sole question to be decided by us is whether the Chancellor erred in refusing to conduct or to allow a voir dire examination of Erika in order to determine her competency to testify as a witness in this case." Id. at 103.
The Maryland Court of Special Appeals found that "it was error for the Chancellor to refuse to conduct the examination of the proposed witness, Erika, either in court or in chambers in order to determine whether she was, in fact, a competent witness. It is true that the decision us to the competency of a witness is within the sound discretion of the trial court but the court must at least conduct such an examination as will disclose the factual basis on which his conclusion as to competency rests." Id. at 105-106. (emphasis added)
In support of that conclusion the Court stated:
"As there is no precise age which determines the question of competency, the court must resort to a determination of the capacity and intelligence of the child and its appreciation of the difference between truth and falsehood. The competency of a witness is established when it is determined that the witness has sufficient understanding to comprehend the obligation of an oath and to be capable of giving a correct account of the matters which he has seen or heard relevant to the question at issue. Weeks v. State, 126 Md. 223, 94 A. 774 (1915); Davis v. Corbin, supra.
The trial court is required to make judicial inquiry in determining the competency of a child of tender years and the criteria to be utilized in reaching a conclusion have been stated in Volume 81, Am.Jur.2d, Witnesses, Section 92, as follows:
'In conducting the examination, the Judge must investigate the child's capacity to communicate, including an ability to understand questions and to frame and express intelligent answers, the child's capacity to observe and remember the matter about which testimony is sought, and the child's consciousness of the duty to speak the truth. It has been held that it is the duty of the Court to conduct the child's examination; that the child's appearance, fear or composure, general demeanor and manner of answering and any indication of coaching or instruction as to answers to be given are as significant as the words used in answering during the examination, to determine competency, and it is impossible to make such important and necessary observations unless the child appears personally before the court.' 'It is error to arbitrarily exclude the child as a witness without such examination.'" (emphasis added).
Procedure for Interviewing Children.Because of the huge potential to detrimentally impact the children, i.e. having the children believe that they determined their own custody (often to the exclusion of the other parent), the Court has procedures in place to mitigate the child having to face and testify against his or her parent. In essence, the interview is conducted by the Judge in his or her chambers without counsel present. Many times, the Judge will remove his or her robe and make small talk to set the child at ease. The testimony is then elicited by questions posed by the Judge and each child must be recorded and provided to counsel for the parties:
"In a custody case, it is proper for the chancellor, in his discretion, to interview the child out of the presence of the parties, with or without the consent of the parties and with or without the presence of counsel. In all cases, unless waived by the parties, the interview must be recorded by a court reporter and immediately following the interview its content shall be made known to counsel and the parties by means of the court reporter's reading of the record to them." Shapiro v. Shapiro, 54 Md.App. 477, 480 (1983). (emphasis added)