Involving children in custody and visitation disputes is a dilemma for attorneys. For example, during jury selection in a recent custody case, many of the potential jurors expressed concern at seeing a young child called to the witness stand. Although the jury would make a decision that would change the child’s life, some of the potential jurors thought that the harm to the child from being scrutinized on the witness stand might be too great. As a result, neither attorney called the child to the witness stand for fear of creating bad rapport with the jury.
Attorneys have alternatives to calling the child as a witness. These include making a prerecorded videotaped testimony of the child or calling the child’s counselor as a witness.
Prerecorded Videotaped Testimony of Child
Section 104.003 of the Texas Family Code states that testimony of the child may be videotaped and later shown at trial. For our post on videotaped testimonies, see here.
Hearsay Rule
To call the child’s counselor as a witness, one must overcome a hearsay objection. According to the Texas Rules of Evidence, hearsay is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement.” The statement may be in writing, it may be oral, or it may be in the form of nonverbal conduct.
One common way to overcome the hearsay objection is to offer the statement for a purpose other than for the truth of the matter asserted. For example, the opposing counsel may bring up the point that the mother would tell people the father was addicted to drugs, inferring that the mother was doing so out of malice. To vindicate the mother, one may address medical records where doctors say the father ought to go to rehab. The opposing counsel will object to the medical records. However, as long as the medical records were introduced not to prove the truth of the matter asserted, but to show why the mother called the father a drug addict, the statements should enter into evidence.
Testimony of the Child’s Counselor
Excellent child counselors in Lubbock include
Section 803(4) of the Texas Rules of Evidence allows a child’s statements to enter into evidence through the child’s counselors. Like the hearsay example above, a counselor’s testimony should overcome a hearsay objection because the counselor’s words are not being used to prove the truth of the matter asserted but to describe the information the counselor relied on for treatment.
- “As to the contention that Dr. Ohler’s testimony was hearsay and should not have been admitted, it is well settled that in child custody matters the trial court has a wide latitude of discretion in considering testimony and evidence, including opinion evidence of expert witnesses, which assists the court in deciding what conditions are detrimental or advantageous to the children for the purposes of deciding who should have custody of them.” Brown v. Brown, 500 S.W.2d 210, 213-14 (Tex. Civ. App.—Texarkana 1973, no writ).
- Calderon v. Texas Dept. of Family & Protective Services, 03-09-00257-CV, 2010 WL 2330372 (Tex. App.—Austin June 11, 2010, no pet.) (admitting the child’s statements made during therapy that the child had seen a white powder on the table and had witnessed her parents acting “weird”).