Unfortunately, sometimes the only witnesses to an act of domestic violence or abuse, besides the abuser and the victim, are the children. After a child is identified as a witness comes the question of whether the judge, hearing officer or special commissioner presiding over a domestic violence case will allow a child witness to testify.
In New Mexico, the Courts are incredibly reluctant to allow children to testify in any type of court proceeding. It is not typically in the best interests of the child to testify against one or the other parents.
As such, the Court may use a variety of methods to gather information from children short of in-court testimony including, but not limited to: safe house interviews; custody evaluators; counselors; court clinicians; in camera interviews, and, guardian ad litems. However, in some, very limited circumstances, the Courts may allow children to testify.
A child‘s testimony may be crucial to the outcome of a domestic violence case, but the value of the testimony must be balanced against the numerous, negative consequences that testimony may have on the child. In many instances the child may feel a sense of loyalty to both parents and not want to take sides. Worse, they may fear being hurt if they testify against the violent party or being abandoned if they testify against the victim.
For these reasons, it is imperative that the court assess whether testifying will place the child in danger and ensure that necessary protections are provided for the child–including counseling to cope with potential emotional harm. Further, a child‘s loyalty to both parents and fear of reprisal by the abusive parent are also reasons why a child‘s testimony given in open court may not be inherently reliable.
Despite these concerns, New Mexico Courts have long considered children to be competent witnesses in the proper circumstances. While there is no particular age that has been determined to be conclusive of competency, in order to testify the witness must be capable of each of the following:
1. Ability to observe.
2. Sufficient intelligence.
3. Adequate memory.
4. Able to communicate.
5. Awareness of the difference between the truth and a lie.
6. Understand the obligation to tell the truth.
Determining whether a child is competent to testify can be accomplished through voir dire examination of the child as well as extrinsic evidence including testimony from doctors, psychologists, and/or therapists. Whether or not to admit a child‘s testimony falls within the broad discretion of the Court.
If your child‘s testimony is deemed necessary and your child is found competent to testify there are steps that can be taken to make the process as easy as possible for the child. For example, New Mexico Courts have found that it is permissible to use leading questions when a witness is “immature, timid or frightened” so long as “the words of the prosecutor cannot be substituted for the testimony of the witness.” State v. Orona, 92 N.M. 450 (1979). Many Courts will also allow the use of what is called a “comfort item” for the child while testifying. For example, children have been allowed to hold a teddy bear while testifying because of the calming effect such items tend to have on children.
The question of whether a child should be called as a witness in a domestic violence proceeding, and the additional question of whether or not the Court will allow that testimony, is very complicated. Anyone facing such a situation, whether as a plaintiff or defendant, should consult an experienced family law attorney immediately.