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Children Can Testify in Custody Disputes

Posted on Tuesday, May 8, 2018

In Surman v. Surman, the trial court allowed a 12-year-old boy to testify in open court during a custody trial regarding what type of abuse had occurred between the child and his father. The Appellant-Father argued on appeal that the trial court should not have allowed any open court testimony by his son in a custody battle. The Court of Appeals affirmed the trial court and concluded that a child’s testimony in open court during a custody dispute is appropriate when the testimony bears on allegations of abuse and neglect.

 

The Court of Appeals reasoned that in abuse and neglect cases, the child involved in the incident is often the only available witness with firsthand knowledge of what happened. Thus, the child has to be allowed to testify as to these incidents in open court in order to prevent infringement on the allegedly abusive parent’s due process rights. If the court were to conduct this interview regarding abuse in camera, there is a good possibility the accused parent’s due process rights would be violated. This is particularly important when there are allegations of abuse because the trial court “is called upon to make credibility determinations, weigh the evidence, and, most importantly, resolve factual conflicts, all of which must be supported by the great weight of the evidence.” The evidence presented regarding the abuse and neglect allegations directly ties into the trial court’s best interests analysis.

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