In a case for publication, Surman v Surman, __ Mich App ___, __ NW2d ___ (2007) decided December 4, 2007, the Michigan Court of Appeals held that a child may be called as a witness at a child custody trial to testify about the child’s allegations of abuse at the hands of a parent.
Here, after allegations of child abuse were made by a child, his father filed an ex parte motion to suspend the mother’s parenting time. The father claimed that the mother had told the child to lie to his counselor. An ex parte order was entered on August 1, 2005. Jane Surman filed a motion to rescind that order and to transfer custody to her from Joseph Surman. She attached a protective services report to her pleading. The court temporarily placed the child with his mother with an ex parte order issued on August 9, 2005.
Subsequently, a child custody trial was had in November and December 2006. Jane Surman’s attorney advised the court that he intended to call the child, now 12, as a witness. Joseph Surman’s attorney objected. The parties were told to submit briefs on the issue. Ultimately, the trial court held that the child could testify about the alleged abuse.
The court of appeals affirmed. Joseph Surman’s objection was based upon Molloy v Molloy (Molloy II), 247 Mich App 348, 351; 637 NW2d 803 (2001), aff’d in part, vac’d in part 466 Mich 852 (2002). In Molloy II, a special panel of the court of appeals convened to resolve a conflict between two other panels on the issue whether the in camera interview of a child by the trial judge could be used for the purpose of gathering information from the children beyond their preference for living with either parent. Molloy II resolved the conflict, holding that “[B]y conducting an in camera conference with the child, which was limited to determining the child’s preference and excluded discussion of other factors not germane to the custody dispute, the judge appropriately protected the child from the trauma of choosing between her two parents in open court.”
However, earlier precedent, Breneman v Breneman, 92 Mich App 336; 284 NW2d 804 (1979), held that the trial court may allow a minor child of the parties to testify in open court with regard to alleged abuse and mistreatment inflicted on him by one of his parents.
What Surman does is to make clear that while an in camera interview is the desired process to question a child with regard to the child’s preference and that interview must be limited to the issue of the child’s preference only, a child may be called as a witness to testify about the issue of child abuse.
Only once in my career have I been faced with the issue of having to put a minor child on the stand as a witness. This 16-year-old was the daughter of my client’s former wife, and a sibling to the parties’ two children. I first attempted to have testimony admitted from a protective services worker and from a counselor. The mother’s lawyer objected, and the evidence was excluded. Only when all else failed, did I call the child—who was under subpoena—as a witness. The mother’s lawyer objected. The judge countered by stating that had he allowed me to establish this evidence through the PS worker or the counselor, then the child would not have to testify. Having failed to do so, the judge allowed the testimony.
To save the child from more trauma, I requested the parties to agree that the only people in the courtroom when the child testified would be the child, the judge, the bailiff, the court reporter and the two lawyers. The parties agreed.
You may read Surman v Surman here.