Thanks for printing! Don't forget to come back to Meriwether & Tharp, LLC for fresh articles!
Should a child be permitted to testify in Georgia family law cases?
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 fatherâ™s visitation rights, alleging that the father had molested a 13-year-old girl in the sonâ™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 childâ™s parents filed a motion forprotective order, objecting to the deposition and provided an affidavit of the childâ™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 âthe relevance and importance of the childâ™s testimony with thepotential that the child will be harmed.â 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 childâ™s testimony was ârelevant and highly importantâ to the fatherâ™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 courtâ™s order, the Court held that âGeorgia âhas 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 childâ™s best interest.â™ Accordingly, Georgia courts âwill not deny a parent all visitation rightsabsent exceptional circumstances in which there is reasonable probative evidence that the parent is morally unfit.â™â Id. at 7, quoting Mitchum v. Manning, 304 Ga. App. 842, 843(698 SE2d 360) (2010).
The Court found that the protective order âprevents and frustrates [the fatherâ™s] legitimate discovery requests.â 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 â" where the deposition can be held, who can be present, the length, etc. Id.