calling a kid as a witness?

[lookinnomore]

I live in the state of Virginia, BM has filed for change of custody.  We (BF and I the girlfriend) have been through a home study and the social service interview.  WHich for the record she moved after the home study was done.  

Yesterday in the mail we received her witness list.  She has put the kids on her list.  Oldest is 13, will be 14 by the time they go to court, youngest is 11 will be 12 by then.

Question is

Can they be called as witnesses?  

I can't believe she will drag them into this, and make them choose a side, but, we can't control it can we?

[socrateaser]

>Question is
>
>Can they be called as witnesses?  

Yes, but it's generally about as effective as trying to strangle the judge with one's bare hands in open court. The result will be that the party calling the kids as witnesses will be viewed as acting against the children's best interersts, and that will pretty much destroy their case.

The only exceptions would be in a situation where the judge felt it would be desirable to talk to the kids, himself, and the parties agreed to a conference in chambers without anyone else present.

Also, if the child is extremely mature and has an independent reason why he/she wishes to address the court, such as why he/she wants to live with a different parent, that would be pretty safe. Otherwise, a decent trial lawyer could probably show that the child(ren)'s testimony wasn't really competent, and then the judge would dismiss the child from testifying, and the parent who called them originally would be sitting there with his/her dork hangin' out.

Bad idea...real bad idea.

>I can't believe she will drag them into this, and make them
>choose a side, but, we can't control it can we?

Well, you could file a motion in Limine (limit evidence), and have a discussion as to why you believe that the children's testimony is more prejudical than probative and therefore should not be allowed.

But, without knowing the facts as to why the kids are testifying, I can't give you a more specific argument.

[lookinnomore]

they are being called as witness to the fact of the daily violence in our home which is totally obserd, and the illegal drugs in our house which is NOT true.  The rest of her witness list is to rebuff our list that makes her look unstable and unfit.  She has promised the kids the moon if they say the want to live with her.  Which they have told us they plan to go into court and say they want to live with her.

UGH the stree is UNREAL, its about to send him over the edge, and makes us FIGHT like crazy...........May is so far away lol

[socrateaser]

>they are being called as witness to the fact of the daily
>violence in our home which is totally obserd, and the illegal
>drugs in our house which is NOT true.  The rest of her witness
>list is to rebuff our list that makes her look unstable and
>unfit.  She has promised the kids the moon if they say the
>want to live with her.  Which they have told us they plan to
>go into court and say they want to live with her.
>
>UGH the stree is UNREAL, its about to send him over the edge,
>and makes us FIGHT like crazy...........May is so far away
>lol

Before I comment further, are both sides represented by attorneys?

[lookinnomore]

yes, we have what I think is a great attorney, but like a doctor he is only as good as what you lead him to do.

she has an attorney that showed up for the pre trial conference without his pre-trial memorandum.  So the judge gave her 30 days to come up with it and set a court date for May.  Thats what we just got in the mail that lists the children as witness.

He (dad)  thinks if the children say they want to live with her, he should let them.  I say they are too young to understand what they are saying in the last 5 years, she has moved 10 times.  Her children that aren't his have gone to 2 schools every school year.  She has moved again since this custody battle started.

[socrateaser]

OK, well to my thinking, the attorney for the mother is an idiot to bring the kids into the courtroom.

You may be able to use this all to your advantage, but it really depends on how much money you have to spend, and how truthful you really are. If you were my client, and I was certain that the substance of what the children will testify to is being "coached" into them by their mother, then I would file a motion in limine at which time I would argue that the kids are likely being "coached" heavily by their mother, and then I would suggest, as an alternative to the children testifying that my client will submit to a polygraph exam on every material issue that opposing counsel wishes to submit, and that mother do the same for me, and that the results of the exams be offered as evidence in lieu of the children's testimony.

Now, this would put mother in the crosshairs. A polygraph exam is inadmissible as evidence of truthfullness unless both parties' agree, but the OFFER to submit to the exam is admissible as a demonstration of character and cooperation, all of which is relevant to a custody action (ordinarily, character evidence is inadmissible, so this trick wouldn't work at a personal injury or breach of contract case).

But, the judge KNOWS that NO ONE, except a complete  socio-psychopath, who feels no guilt for lying, can beat the machine, when operated by a competent examiner.

So, if mom refuses, then that brings the kid's truthfullness into question, because we would have asked whether mom had coached them, and we would have asked mom the same question. It also brings into question mom's desire to guard the kids against harm, because she evidently prefers the kids to be dragged into the case, rather than to have her own truthfullness put to the test.

Of course, all of this hangs on whether you're telling the truth -- so, obviously if you do use drugs and there is lots of fighting, etc., then this tactic wouldn't work.

Anyway, you think about that. The polygraph exam and having the examiner testify as to the results will probably run around $2,000.

[lookinnomore]

sounds like a great idea cause I know she would fall right into the trap, she only cares about herself not the boys.  We've already borrowed out the wazoo for the attorney, will pass your advice on.

As always YOU'RE THE BEST THANKS  for your insight and knowledge!