No one is more affected by custody determinations than the children. On the other hand, the courts strain to prevent children from having to testify in front of their parents.

In Matter of John V. v. Sarah W., the Appellate Division, Third Department, in its October 20, 2016 affirmed a change of physical custody to the father. Doing so, however, the court noted that it had been improper to allow a child of 12 to testify in front of the parents’ lawyers in the absence of the parents.

In 2009, the parents had agreed to joint legal custody of their then seven-year old son, with primary physical custody to the mother and parenting time to the father. In July 2014, after the child reported to the father that the mother’s live-in fiancé “ha[d] been hitting” him, the father commenced this proceeding seeking primary physical custody of the child. Following a fact-finding hearing, which included testimony given by the child outside the presence of the parties but in the presence of counsel, Broome County Family Court Judge Rita Connerton modified the prior order of custody by awarding primary physical custody to the father and reasonable parenting time to the mother. The mother appealed and the Third Department affirmed.

The father had demonstrated that there had been a change in circumstances that warranted an inquiry into the best interests of the child and that the modification of the existing order was necessary to ensure the child’s continued best interests. As established through testimony given by the mother, the child and the father, the mother’s fiancé struck the child on the back of the head after accusing the child of touching the television screen and later raised his fist at the child and stated that he could punch the child, at which point the mother separated the child and her fiancé. The child testified that the fiancé had never before raised a fist at him, but had kicked him in the butt more than 10 times, frequently yelled at him and occasionally called him derogatory names. The mother stated that she had seen her fiancé kick the child in the butt on one occasion.

It was evident from the record that both the mother and the father were capable and loving parents and that, as demonstrated by the periods in which each were the primary custodian, the child had thrived in each parent’s care. However, the mother’s testimony revealed that she minimized and made excuses for her fiancé’s inappropriate behavior. In addition, Judge Connerton found that the mother was “angry” about the events that transpired after her fiancé struck the child and that she blamed the child for the situation, as well as the legal fees that she and her fiancé had incurred. The record further demonstrated that the father was the parent who was more apt to promote the child’s relationship with the other parent. Indeed, the mother stated that, regardless of his wishes, the child should live with her and that she was unsure how amenable she would be to the child having visits with the father. In contrast, the father testified that the child could call the mother as often as desired and he did not express any opposition to the mother having parenting time with the child. Considering the foregoing evidence, as well as the child’s preferences, the appellate court found there was a sound and substantial basis in the record for Judge Connerton’s determination that an award of primary physical custody to the father was in the child’s best interests.

As part of her grounds for the appeal, the mother had argued that Family Court committed reversible error by allowing the child to testify as a fact witness in the presence of counsel but not the parties, and by not sealing the child’s testimony. The Third Department, however, noted that initially the mother had raised no objection to Judge Connerton’s proposed procedure and, moreover, requested that the parties’ counsel be present for the testimony. Therefore, she could not now be heard to complain about that procedure.

Nevertheless, we take this opportunity to underscore the importance of protecting a child’s right to confidentiality, which is paramount and superior to the rights of the parties. Even if, as occurred here, a child assents to his or her testimony being shared with his or her parents, Family Court must not put a child in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them or be required to openly choose between them.

Moreover, because the mother corroborated the father’s hearsay account of the incident that occurred between the child and the fiancé, we perceive no reason for the child to have testified as a fact witness and we reiterate that such a practice should be used sparingly and only when absolutely necessary.

Norbert A. Higgins, of Binghamton, represented the mother. Richard J. Grace, of Binghamton, represented the father. Andrew Bailey, of Binghamton, served as attorney for the child.