Jane Doe is a fictional divorcée whose plight will sound familiar to most divorce attorneys. Her husband, John Doe, had repeatedly and flatly lied in gaining primary residential care of Jane's young daughters. He claimed to cook the majority of their daughters' meals, wash their clothes, read to them... the fabricated list went on and on. Few witnesses could contradict him because he maintained a convincing façade for family and friends. The only third-party witnesses who knew the truth were the parties' daughters, and Jane Doe's attorney declined to offer the young girls' testimony. Her attorney said testimony from "kids is usually inadmissible."
Jane Doe, like many divorcing parents, may have lost custody because her attorney was unaware of recent legal developments opening the door for child testimony. In 2010 the Washington Supreme Court's opinion in State v. S.J.W., 170 Wn.2d 92 clarified that children are presumptively competent to testify. As the Court wrote: "A six-year-old child... may be more competent to testify than an adult in a given case; no court should presume a child is incompetent to testify based upon age alone.... [W]e hold that courts should presume all witnesses are competent to testify regardless of their age." The Court buttressed its opinion with comparable federal law.
At a 2011 Family Law Evidence Continuing Legal Education Seminar in Snohomish County, commentator Karl Tegland stated witnesses over the age of four tend to survive competency challenges in Washington. An audience member responsively chortled that no Snohomish County family law "commissioner would leave an attorney with a shred of dignity" if the attorney tried to submit a declaration from a child that age. Other attendees shared the vocal audience member's reservations about child testimony. Obvious practical and public policy concerns have given local courts and practitioners good reason to avoid child testimony, especially in family law hearings where parties submit evidence by declaration.
However, the S.J.W. case, federal law, and Tegland's comment suggest the perceived value of child testimony is overcoming many of those concerns in other venues and jurisdictions. Eric Johnson, a Utah attorney, wrote the following in defense of the child depositions he conducts: "The real reason people don't want children deposed... is because children, by their virtue of being young, and thus inexperienced and naïve, have a lot harder time being clever and evasive. People who don't want children deposed object because a child's testimony quite often has real evidentiary value that is damaging to the case of those who object to the child's deposition."
For better or worse, attempts to offer the testimony of younger children are coming. Divorce attorneys in Snohomish County and throughout Washington State should be prepared.