In family law cases, courts often have to find a balance between allowing a child to testify, and protecting that child from harm. In one recent Georgia case, following their divorce, partiesshared joint legal custody of their son with the mother having primary physical custody. Galbreath v. Braley, A12A1115 (2012). A few months after the divorce, the mother filed a petitionfor modification of custody and for an emergency suspension of the father’s visitation rights, alleging that the father had molested a 13-year-old girl in the son’s presence. Id. at 2.The father sought to take a videotaped deposition of the allegedly molested child to present as evidence in the custody modification case. Id. The child’s parents filed a motion forprotective order, objecting to the deposition and provided an affidavit of the child’s social worker specifically describing the severe harm to the child that could result if the deposition wasallowed.
The trial court looked to case law from other states (as there is no Georgia case law on point) and performed a test balancing “the relevance and importance of the child’s testimony with thepotential that the child will be harmed.” Id. at 3; Graham v. City of New York, 2010 U.S. Dist. LEXIS 78184, 2010 WL 3034618, *5(B)(2) (E.D.N.Y. 2010). In performing thisbalancing test, the trial court found that the child’s testimony was “relevant and highly important” to the father’s case, the potential harm to the child outweighed his interest in thetestimony. Id. at 4. The trial court, thus, granted the protective order, completely prohibiting the deposition (rather than imposing restrictions on the deposition) and the fatherappealed. Id.
The Georgia Court of Appeals agreed with the father. In vacating the trial court’s order, the Court held that “Georgia ‘has a strong policy in favor of allowing a divorced parent continuingcontact with his or her child so long as the parent has demonstrated the ability to act in the child’s best interest.’ Accordingly, Georgia courts ‘will not deny a parent all visitation rightsabsent exceptional circumstances in which there is reasonable probative evidence that the parent is morally unfit.’” Id. at 7, quoting Mitchum v. Manning, 304 Ga. App. 842, 843(698 SE2d 360) (2010).
The Court found that the protective order “prevents and frustrates [the father’s] legitimate discovery requests.” Id. at 8. The Court, therefore, vacated the protective order andremanded the case to the trial court to reconsider whether and to what extent the deposition may go forward without exacerbating any harm to the child, specifically directing the trial court toconsider allowing the deposition with reasonable restrictions as to the method – where the deposition can be held, who can be present, the length, etc. Id.