Jo M. Reed, Plaintiff,
George H. Reed, Defendant.
Edelstein, Faenburg & Brown, Brooklyn (Saul Edelstein of counsel), for defendant.
Cognatti & Ryan, L. L. P., Staten Island, for plaintiff.
Sampel & Nalley, Staten Island, Law Guardian.
Jeffrey S. Sunshine, J.
The defendant father herein moves by way of motion in limine for an order permitting the entry of testimony of the minor six-year-old child in the instant divorce action. The father proposes to question the child as to acts which she observed or did not observe regarding the mother's claim of cruel and inhuman treatment and to testify on the issue of custody. Further, the defendant father opposes the plaintiff mother's request for a divorce.
Defendant's counsel avers that there is a constitutional right for the child to be heard in the instant proceeding in that " a child is not the family pet ... A child has the right to be heard and to have his or her preference considered." Defendant further argues that the child cannot be heard through the child's lawyer or the child's Law Guardian stating that the child's Law Guardian is an advocate and not a witness. The defendant assumes for the purposes of this motion in limine that the child is sui juris and is mature enough to testify from the stand to give his or her preference.  (See Prince, Richardson on Evidence § 6-106 [Farrell 11th ed]; see also Wheeler v United States, 159 U.S. 523, 524-525 .) Defendant's position is that the denial of a child's right to be heard under the alleged " best interest" test is " abominable and incorrect."
Plaintiff mother and Law Guardian on behalf of the child each opposes calling of the child to the witness stand to testify on the issue of fault. As part of her argument to prevent the child from testifying, plaintiff states that on December 14, 1998, at a hearing in the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida, the defendant was accused of having perpetrated an incident of domestic violence against the plaintiff. The domestic violence hearing was attended by plaintiff with her attorney and defendant with his attorney.
After hearing all of the testimony and evidence the Florida court found that the plaintiff was " a victim of domestic violence and/or has reasonable cause to believe that he/she is in imminent danger of becoming a victim of domestic violence by Respondent."  The Florida court granted temporary custody of the child to the plaintiff, visitation to defendant and issued an
order of protection against the defendant which remains in effect until this very day. That order, dated December 29, 1998, provides inter alia, " No Contact. Unless otherwise provided herein, Respondent shall have no contact with Petitioner. Respondent shall not directly or indirectly contact Petitioner in person, by mail, e-mail, fax, telephone, through another person, or in any other manner."
Similarly, the Law Guardian opposes the application. The Law Guardian revealed to the court that the child who is six years old has since the age of four been interviewed, re-interviewed, analyzed, etc., and is extremely cautious as to where to place her trust in the court system. The Law Guardian states: " To determine her competency to testify she would have to be questioned by the Court, which I believe would be traumatic for her" and " my client has been betrayed, inadvertently, by the Family Court system and has lost her faith in the Court's ability in keeping confidential, what she has reported in the past."
It has been revealed to the court that a transcript of a tape recording of an in camera proceeding in a prior proceeding before a referee in Family Court (which was discontinued by the father in Family Court) was sent to the father at his request and the father, incredibly, discussed the content of the in camera interview with the child. This incident has seriously threatened the sanctity of an in camera interview. (See Matter of ...