I'm posting the following on behalf of a colleague not on this list serv:

Father (defendant) wants to subpoena the parties' 15 year old son (who was present in the marital home during an altercation) to testify at his parents FRO hearing.  Is there case law to prevent children testifying against their parents?

I'm posting the following on behalf of a colleague not on this list serv:

Father (defendant) wants to subpoena the parties' 15 year old son (who was present in the marital home during an altercation) to testify at his parents FRO hearing.  Is there case law to prevent children testifying against their parents?

I'm posting the following on behalf of a colleague not on this list serv:

Father (defendant) wants to subpoena the parties' 15 year old son (who was present in the marital home during an altercation) to testify at his parents FRO hearing.  Is there case law to prevent children testifying against their parents?

Yes - there is no set age that renders a witness incapable of testifying. If the witness knows the difference between the truth and a lie and understands that there are negative consequences for lying, they can testify. 

Like others have mentioned, I've had a couple of cases where a child eyewitness (once a 12 year old, once a 10 year old) had to testify. And in both cases, it absolutely saved the day. To be blunt - it sucks to have to put a child in the middle of something like this. But the stakes are so high in a DV case that it sometimes cannot be avoided.

If a judge refused to permit a child witness to testify, I'd get a proffer on the record as to what the child would say -- regardless of whether this will raise the ire of a judge. If your only choice is to either not represent your client or to fall off the judge's Christmas card list, then so be it. I'm not going to say (to myself nor a client) "yes, I know your child saw the whole thing and could have cleared you, but I didn't want to raise the judge's ire by calling him/her."

If a court refused to permit you to call a child witness (as a result of ire or another reason), you'd have a very, very solid chance of having the appellate division reverse a resulting FRO.

_______________________
David Perry Davis, Esq.

112 West Franklin Avenue

Pennington, NJ 08534

www.FamilyLawNJ.pro 

Voice: 609-737-2222

Fax: 609-737-3222

_______________________

Yes - there is no set age that renders a witness incapable of testifying. If the witness knows the difference between the truth and a lie and understands that there are negative consequences for lying, they can testify. 

Like others have mentioned, I've had a couple of cases where a child eyewitness (once a 12 year old, once a 10 year old) had to testify. And in both cases, it absolutely saved the day. To be blunt - it sucks to have to put a child in the middle of something like this. But the stakes are so high in a DV case that it sometimes cannot be avoided.

If a judge refused to permit a child witness to testify, I'd get a proffer on the record as to what the child would say -- regardless of whether this will raise the ire of a judge. If your only choice is to either not represent your client or to fall off the judge's Christmas card list, then so be it. I'm not going to say (to myself nor a client) "yes, I know your child saw the whole thing and could have cleared you, but I didn't want to raise the judge's ire by calling him/her."

If a court refused to permit you to call a child witness (as a result of ire or another reason), you'd have a very, very solid chance of having the appellate division reverse a resulting FRO.

_______________________
David Perry Davis, Esq.

112 West Franklin Avenue

Pennington, NJ 08534

www.FamilyLawNJ.pro 

Voice: 609-737-2222

Fax: 609-737-3222

_______________________