The Better Chancery Practice Blog

Lawyers who practice in my court are familiar with my prejudice against calling the children of the parties as witnesses in domestic cases.  As the Supreme Court has said, ” … parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so, except in the most exigent cases.”  Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990). 

As for the definition of tender years, “[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998).  A child over four years of age may no longer be considered of tender years.  Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss.2004).  There is a rebuttable presumption that a child under the age of twelve is of tender years.  Veasley v. State, 735 So.2d 432, 436-37 (Miss. 1999). 

Jethrow does make it clear, however, that there is no per se rule against calling children of the parties as witnesses, and the case prescribes a procedure for the court to examine the child to make a determination whether the child is competent as a witness under Mississippi law and whether testifying is in the child’s best interest. 

It is always within the trial judge’s discretion whether to allow the testimony of a child, and the line that I usually draw is to allow the child to testify only where omission of such testimony would be harmful to the child’s best interests.  Even then, the court must find after a Jethrow examination that it is in the child’s best interest to testify.  It is a weighing test, with the possible harm that may result to the child’s best interest from not testifying on one side of the scale and the possible harm from testifying on the other.  Every case is different, and slightly different facts may yield radically different results. 

As an attorney, you should counsel your client on the ramifications of calling a child as a witness.  It pits the child against one of the parties, puts the child under incredible pressure, and subjects the child to cross examination that may confuse and intimidate the child. 

Never, ever, tell your client that the child will definitely be allowed to “talk to the judge” or testify in chambers or out of the presence of the parents.  Not only is that misleading and setting the child and the clients up for disappointment, it is not the law.  The only way that the law allows the court to take substantive testimony (other than the Jethrow examination) outside the presence of the parties is with their express agreement on the record.  MCA § 93-5-17 mandates that divorce proceedings be had in open court.  MCA § 93-5-21 allows the court to exclude persons from the court room during a divorce trial ” … except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined.”  The rule should apply in modifications and contempts, since they are no more than an extension of the divorce trial.  Moreover, the Due Process Clause of the U.S. Constitution requires that a party not be excluded involuntarily from his or her own trial.     

If you need the child’s testimony to prove a crucial element of your case, ask to make an offer of proof on the point before the court undertakes its Jethrow examination so that the judge will know what it is you are trying to prove and how much weight it carries.  If there are other witnesses who can establish the same facts, opt instead to call them.