Testimony of Minors in Virginia Custody Cases

      Generally, it is inadvisable to have a child testify during court proceedings because it can lead to strained familial relationships, or even further-reaching consequences for the child. However, in some cases like physical, sexual, or emotional abuse, a relocating parent, or a child's strong preference as to the outcome of the case, the testimony should be offered.

Laws Regulating Testimony of Minors

The laws governing a child’s testimony are generally unclear, which has left only one specific basis on which that testimony can be prevented by the court, incompetency. Virginia’s test for incompetency is, “the child must have sufficient mental capacity to observe the data about which it has testified and record it in mind, and thereafter understand questions put to it and be able to give intelligent answers. There must also be a sense of moral responsibility, at least to the extent of a consciousness of duty to speak the truth.” Rogers v. Commonwealth 132 Va. 771 (1922). With this test in mind, the court then uses its discretion to make a determination of competency, only to be overturned if there was a manifest error. §8.01-396.1 of the Virginia Code does provide one rule limiting that discretion, “no child shall be deemed incompetent to testify solely because of age.” Arguments have also been made though Virginia Code §20-124.2(A) and (B) that a court has the power to prevent a child’s testimony, but courts are unsettled on how to interpret those statutes.

Statutory provisions have also been found to implicitly support a child testifying. Virginia Code §20-124.2:1 establishes the procedure for in-camera interviews of a child, while §20-124.3(8) requires the court consider the reasonable preferences of the child, which can only be determined through testimony.

legal procedure when children testifyProcedure When Children Testify

            Virginia has decided that the absence of bright-line rules governing children’s testimony is in the best interest of children and their parents. Rather, the court should first consider the realities of each particular case and then determine the method of gathering evidence that most effectively balances the bests interests of children with the procedural rights of parents.

Practical Implications

            There may be no statutory or common law basis for excluding a competent child’s testimony, but the court has tools to effectuate its will. The judge is well within his or her power to take into account the fact that a parent compelled a child to testify and hold it against that parent. Therefore, before a child is compelled to take the stand a parent must take into account how a court will perceive the decision.

A Better Way: In-Camera Interview

            The best approach to securing testimony of children is through a motion/order for an in-camera interview. The child and guardian ad litem accompany the judge to his or her chambers and have a conversation. Typically, children 12 and older are deemed mature enough for an in-camera interview, but age is only one of the factors considered by the court.

Smith Strong, PLC

         This area, like many areas, of family law is analyzed on a case by case basis, which makes good lawyering a key to success. From deciding whether a child will testify to making an argument on an ambiguous statute, the experienced and knowledgeable attorneys at Smith Strong will advocate for you throughout every part of the litigation process. Please call (804) 325-1245 or (757) 941-4298 to schedule your first meeting.

 

Editorial Assistance By: Michael Gee - Law Clerk

H. Van Smith
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