Domestic Diversions

The Michigan Court of Appeals is publishing Surman v Surman (Case No. 276615, 12/4/2007), which addresses children as witnesses (excerpt):
While courts should seek to avoid, trial court may call child to testify in court about his or her allegations of abuse during child custody proceeding divorcing parents from being pushed to the center of their parents’ dispute by avoiding the taking of the child’s parental preference testimony in court. Based on this principle of protecting the child from undue stress, Joseph Surman argues that Nicholas should not have been called to testify in court regarding his allegations of abuse.

We disagree. First, Molloy II firmly established that the subject matter of the in camera
interview be strictly limited to determining the child’s preference. Second, neither case law nor
court rule precludes a trial court from taking testimony in court regarding issues other than the
child’s preference. Indeed, case law, including Burghdorff, Molloy II, and specifically,
Breneman, makes clear that a trial court must take testimony in open court on issues of abuse or mistreatment because to allow courts to discuss such matters during the in camera interview would constitute a due process violation. Stated differently, although courts should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to cross examination, concerns over the child’s welfare are outweighed when balanced against the parent’s due process rights.

When dealing with issues such as abuse and mistreatment, the child will often be the only
witness, other than the allegedly abusive parent, with firsthand knowledge of the incident.33
Thus, testimony concerning a child’s allegations of abuse is clearly relevant to the trial court’s
custody determination.34 And, unlike when assessing testimony regarding the child’s personal preference on which parent the child would rather reside, when assessing testimony of abuse the trial court is called upon to make credibility determinations, weigh the evidence, and, most importantly, resolve factual conflicts, all of which must be supported by the great weight of the evidence and subject to this Court’s review.35 Accordingly, when necessary to facilitate a trial
court’s assessment of the child’s best interests, a trial court may call a child to testify in court
concerning his or her allegations of abuse during a child custody proceeding.

Joseph Surman also argues that the trial court should not have interviewed Nicholas in
court because he had been diagnosed with bipolar disorder and oppositional defiant disorder, and was taking medication and receiving psychological counseling. We disagree.

In Breneman, this Court, citing MRE 601,36 held that, “as a general rule an 11-year-old
child is competent to testify . . . unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and
understandably[.]”37 Here, the trial court “specifically questioned the child to determine his
competency and ability to tell the truth before it permitted him to testify.”38 Therefore, the trial
court complied with MRE 601 by assessing Nicholas’s competency on the record. Indeed, the trial court took additional safeguards to make sure the process was not coercive or threatening by soliciting the active participation of James Van Treese, PhD.

We conclude, in keeping with Breneman and Molloy II, that the trial court did not abuse
its discretion in permitting Nicholas to testify in court regarding his allegations of abuse against Joseph Surman.