Child Testimony in Order of Protection or Family Offense Cases

Unlike circumstances relating to child custody cases, where the testimony made by the children involved (please seemy last blog for more information), can be done in a private setting (In-Camera), circumstances can differ somewhat in order of protection or family offense cases, where children are brought forth as witnesses to a specific event. In the case of a family offense proceeding, which is a case in family court that addresses whether or not there should be an order of protection, a child’s testimony that will be entered into evidence must be presented in front of all the parties involved.

Obviously, asking a child to testify in front of the parties, who are often their parent(s), in a family offense case can be a very difficult process, and it’s something that is frequently avoided at all costs, whenever possible. The reason for this is that the psychological damage a child is exposed to during such a procedure can be very significant, particularly when he or she is offering evidence against their parents.

Though a family offense proceeding is recognized as a civil proceeding, and isn’t directly about crime and punishment, it’s seen as a “quasi-criminal” case, because when family offenses are found, an order of protection can restrict someone’s freedom by forcing them to stay away from certain places and people. Additionally, these orders can prevent certain people from performing certain acts and behaving in a particular way.

Under the United States Constitution, particularly within the “Confrontation Clause”, and the laws of New York State, the accused individual, or the respondent in a family offense proceeding, will have the right to confront the witnesses presenting evidence against them. This right to confront witnesses includes a right to listen to the testimony provided, and to have their order of protection lawyer cross-examine the witness in question.

In a case wherein a party insists upon calling a child as a witness, one way to minimize trauma for the child involved can be to allow attorneys for the parties into the chambers with the judge, the child, and the lawyer for that child. The attorneys for each party can make objections to impermissible testimony and questions, while also cross-examining the witness. Additionally, the parties may be able to watch the testimony from a television feed, so that the child doesn’t have to be in the same room as their parents, if the parents are the Respondents in the case, when they testify.

Before cross-examining a child witness, the attorney for a specific party may speak with his or her client, who has been listening to, and watching the testimony via a video feed. This “television feed” technique, which I have seen employed in the past, can satisfy the confrontation clause, while minimizing the psychological impact of a child testifying against their own parents. Importantly, I would like to outline that this blog shouldn’t be taken to indicate that having a child testify is a good or bad idea in this situation, though it may be required to prove a case.

In the Court of Appeals case Lincoln v. Lincoln, which I discussed in last week’s blog, one of the children involved within the case allegedly heard statements that were relevant to the case, but the child was not offered as a witness. Unfortunately, even if the court credits a child’s statement which is made during an “In Camera” interview, it’s not admissible in a family offense proceeding, because, as I outlined above, the respondent has the right to cross-examine the witnesses.

The purpose of an “In Camera” interview, as I mentioned in my previous blog, is to obtain a fuller understanding of the impact that parental differences might have on a child during custody and parenting time arrangement, as well as gaining an honest insight into the child’s attitudes and desires regarding visitation and custody. Though these interviews in private can certainly limit the amount of psychological danger to a child, and also serve to be far more informative than traditional procedures, they’re not appropriate for family offense cases under New York’s current laws.

While the standard of proof in family offense proceedings within family courts is lower than that required within criminal court (preponderance of evidence v. proof beyond a reasonable doubt), the fact remains that in article 8 (Family Offense)  proceedings, the court must determine whether something which is a crime under the criminal law happened.  But again, a Family Offense proceeding is a civil proceeding, so not about criminal convictions.  However, because of the quasi criminal nature of the case, this means that the parties involved must be given the traditional procedures associated with the adversary system, including the right for cross examination. As such, if the court was to rely exclusively on an in-camera interview, the due process rights of each party would be compromised.

To learn more about the complexities of order of protection or family offense cases, or to discuss circumstances surrounding your case further, please feel free to reach out to me, Mr. Darren M. Shapiro, and schedule your free initial half-hour consultation. You can contact me through our online form, or call on 516-333-6555.

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