HOW CAN I GET MY CHILD’S STATEMENTS INTO COURT WITHOUT HAVING MY CHILD TESTIFY?

by Justin Van Den Heuvel

Michigan parents who are in a child custody proceeding often find themselves stuck between a rock and a hard place when their children are old enough to voice a preference concerning the parent with whom they would like to live or a visitation schedule they would like to have with the noncustodial parent. On the one hand, these preferences and statements – and the reasons for them – are all hearsay and inadmissible unless the child him- or herself testifies to the court. On the other hand, testifying in court and in front of one’s parents can be an especially traumatizing experience for children. Some family law judges will refuse to allow a child to testify under any circumstance.

What can parents do when their child wants to communicate his or her thoughts and preferences to the judge but the parent(s) do not want the child to testify?

1. Decide if the child’s testimony or statements are really needed. Most courts will assume that children – especially young children – lack the maturity, insight, and wisdom to make decisions in their own best interest. Some courts will not allow children below a certain age to make any statement to the court in any way, while other courts may allow such statements but will not give them much credence. You and your attorney may need to decide whether your child’s thoughts and preferences will have a significant benefit for your custody case. If not, you may need to be the adult and deny your child the opportunity to make a statement to the court.
2. Agree or stipulate that the statements will come in. Alternatively, you may be able to gain a stipulation or agreement from the other party that will allow a written or prerecorded statement from the child to be presented to the court. When two parties agree to admit certain evidence, this overcomes many issues that would otherwise exclude the evidence from consideration (including the rules against hearsay). This does not mean that the court will seriously consider the statement or ascribe it any great weight, but it will at least allow the statement to come into evidence.
3. File a motion with the court. The court retains a great deal of discretion under the law to admit evidence. If all other efforts at introducing your child’s statement without having your child testify have failed, you may be able to argue that your child’s statements should be admitted and ask the court to allow this to happen. However, usually these statements will be entered when you ask the court to do an interview with the child regarding his preference under the 12 child best interest factors (see factor (i)). These factors become relevant in change of custody and parenting time request.

In the alternative, you and your attorney will typically need to show that the child’s statement is not “hearsay,” that it falls within one of several exceptions to the hearsay rule, or that it is otherwise reliable enough to be considered by the court.

Contact A Grand Rapids Family Law Lawyer That Wants To Help

Experienced and knowledgeable family law counsel can help you present a strong and compelling custody case – oftentimes without the necessity of having your child caught in the middle of the dispute. Contact Van Den Heuvel Law Office today and learn how we can help you achieve your desired results in your custody proceeding. Call our office at (616) 698-0000 or contact us through our firm’s website.

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