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Can a child testify in a family law suit?

It is most often discouraged to have children serve as witnesses in a family law suit between the child’s parents. However, the Amarillo court of appeals recent decided a case that discusses the standards for securing pretrial testimony of a child for admission during a family law trial. There, the father filed a suit for modification and sought a court-order permitted him to take recorded testimony of the child for use at trial. The trial court permitted the recorded testimony. However, when the father sought to use and admit the recorded testimony, the trial court refused admission. Before a child’s recorded statement may be admitted into evidence, there must be a showing of competence at the time the testimony is given and a showing that an oath was given or some discussion had with the child about the issue of truthfulness. Father’s attorney failed to establish that the child knew to tell the truth and therefore the attorney failed to show the child is a competent witness. Thus, the court of appeals affirmed the trial court’s denial of admission of the child’s testimony.

Nichol v. Nichol, ___ S.W.3d ___, 2014 WL 199652 (Tex. App.—Amarillo 2014, no pet. h.) (mem. op.) (1/15/14).