By Brian K. Zoeller and Nicole Makris
One of the most troubling events that can arise in a family law matter is when children of the parties are placed in the middle of the parents’ adversarial proceeding. In one instance, a completely unprepared opposing counsel insisted on calling the parties’ 10-year-old child as a witness in a custody proceeding. The attorney had taken no steps whatsoever to ascertain the child’s wishes prior to trial through a guardian ad litem or mental health professional. The attorney insisted the child take the stand despite requests to the court that it at least be done in chambers as an in-camera interview and not in an open courtroom. The judge was bound by the rules of evidence and lack of statutory protection for child witnesses in family law cases and, thus, allowed the confused 10-year-old to testify. We can and must do a better job of protecting children in family law matters, and legislative action is needed to do so.
The best interest of the child is the principal consideration in family law cases involving custody orders. Difficulties arise in contested custody matters when the “best interests” standard is at odds with the court’s need to consider the child’s wishes or other testimony of the child that the rules of evidence may otherwise allow. While alternative options exist to help minimize the child’s exposure to the adversarial proceeding between the child’s parents, these avenues are not always explored by counsel before the filing of a request for an in-camera interview of the child, or worse, the calling of the child as a witness in the custody dispute.
Those in the practice of family law have more likely than not encountered a case in which one party believes the testimony of the child is imperative to their case. Family law practitioners are well aware that the wishes of the child are a requisite consideration for the court in determining a custody order, with more consideration given to the child’s wishes when the child is at least 14 years old. However, there are ways of obtaining the evidence necessary for our clients’ cases without risking psychological harm to the child. While the Legislature has carved out alternatives to having a child testify in open court, such as holding an in-camera interview of the child, additional legislation is needed to address when an in-camera interview of the child or the child’s testimony at trial may be sought.
Court discretion needed regarding child witnesses
In some states, judges have the authority to exclude the testimony of a child if there is substantial evidence that testifying would have harmful effects on the child. In Indiana, the lack of discretion the trial court has regarding the testimony of a child in family law cases was elucidated in the 1995 Court of Appeals decision of White v. White, 655 N.E.2d 523 (Ind. Ct. App. 1995). This case held that the discretion vested in the trial court judge does not extend to determining whether an otherwise competent child witness may testify in a dissolution proceeding. In White, the judge declined to allow the parties’ 10-year-old child to testify as a rebuttal witness, stating in part, “It is the position of this Court and has been the position of this Court since day one that children of the Parties are not to be called as witnesses.” The Court of Appeals acknowledged the trial court’s reasoning in attempting to shield the child from the proceedings was admirable. However, the trial court was found to have erred in excluding the rebuttal testimony of the child. The Court of Appeals observed, “While it may be good policy to exclude some otherwise competent persons, including children, from the adversarial and confrontational setting, articulation of such policy should be left to the legislature.” The need for legislative change on this issue was apparent over 20 years ago, yet we continue to fail to protect children in the courtroom today.
By statute, trial courts have the responsibility of determining custody orders that are in the best interests of the child. While the courts are required to consider “all relevant factors” in making best-interests determinations, the emotional well-being of the child is undoubtedly worth consideration in assessing how evidence is to be heard in a custody matter. Legislative reform is needed to allow trial courts the discretion to weigh the best interests of the child against the need for the child’s testimony, whether in-camera or on the witness stand.
The proposed legislation is as follows: A party to a custody proceeding shall not be permitted to call a minor child as a witness or request an in-camera interview of the child unless the requesting party (1) demonstrates a sufficient need for the requested relief; and (2) shows that all other resources for acquiring the information intended to be provided from the child’s testimony have been exhausted. A minor child for the purposes of this legislative proposal is a child under the age of 18.
The first prong of the proposed statute places the burden on the requesting party to demonstrate that the anticipated testimony and information sought to be introduced through the child cannot be obtained in another way. The second prong requires the requesting party to present evidence to the court that all other reasonable options have been explored at the time of the request, such as the appointment of a guardian ad litem, the request for a custody evaluation, and/or the consultation of a child psychologist or other behavioral health professional. If these avenues have been pursued, the requesting party should be required to show the court why the results were inadequate and why the sufficient need under the first prong still exists.
This proposal would effectively extend the trial court’s discretion surrounding in-camera interviews under Indiana Code § 31-17-2-9. The new legislation would allow the trial court to determine on a case-by-case basis whether it is appropriate under the circumstances to involve the child in the proceeding through an in-camera interview or open court testimony, whichever the request may be. It would be within the trial court’s discretion to determine what alternative options to an in-camera interview or calling the child as a witness are best suited for the case at hand.
Children are inevitably exposed to their parents’ divorce or separation, but this exposure should not be exploited for litigation purposes. As family law practitioners, we have a duty to keep the best interests of the child in the forefront of our minds as we develop our trial strategies. The best interests of the child will be served with legislative guidance in place to ensure that proper precautions are taken into consideration when weighing the need for evidence against the need to protect the child’s well-being.•
• Brian K. Zoeller and Nicole Makris are attorneys at Cohen & Malad P.C. in Indianapolis. Opinions expressed are those of the authors.