Imagine that you have a divorce that is pending before the Rhode Island family courts. Your children are visiting with their father and you find out from the children that your children have been in the presence of a third-party female that you aren't familiar with. You don't know anything else other than what your children have told you that a woman has been around with their father from time to time. There is no indication that this woman is over frequently but the children seem to like her and you are concerned that the children are being exposed to an improper influence.
You contact your lawyer and want to go before the family court to stop the exposure of your children to this woman because you think that it is a new girlfriend that your husband has. Your lawyer is hesitant but files a motion to restrain and enjoin your husband from having the children in the presence of any woman who is not related to either of the parties.
Your attorney goes into court and the judge asks your attorney what evidence, if any, that has been obtained in support of the motion to restrain this father from having the children around ANY third-party female. Your attorney mentions that he minor children have been telling their mother that this woman is around them when they have visitation with their father. The judge asks if their is anything else. The attorney answers "No". The judge denies the motion. The mother of the children is furious that the judge denied the motion when he or she was given the information.
The mother's attorney tries to explain the technicalities regarding the rules of evidence but she doesn't want to hear it. The mother believes her children are telling her the truth and they have no reason to lie. The attorney explains that minor children are not allowed to testify before the court due to their age and because they may be counseled by one or the other parent to provide an altered representation of the events. The attorney also explains that children are not considered a reasonably reliable source of information before the court, especially when it comes to restraining an adult from his right to be around other people. The mother is not happy and doesn't understand.
Evidence must be relevant to the subject matter of the case. Evidence also must be presented under oath by a person capable of understanding the court's oath and the consequences of disobedience of that oath. Evidence also must be reliable and cannot be hearsay or must be an exception to the hearsay rules of evidence. Children do not fall within the standard of reliability necessary to satisfy a court proceeding in order to make a valid decision. Children also do not have sufficient appreciation of what it means to take an oath and what the consequences may be if they do not tell the truth.
At best, the information from a child is very often only information that a parent can used to follow up on in order to verify or disprove what the child has said.
Young children and their statements are not normally considered evidence before the court, though the court has discretion to consider whether the child may be considered reliable and whether the child is old enough to appreciate the significance of the oath he or she must take.
In the end, it is best not to rely upon statements of minor children to win any hearing in family court. Develop the information and be able to testify to it personally yourself and your are in a better position to prove your case.
Christopher A. Pearsall
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West Warwick, RI 02893
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