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CAN -- AND SHOULD -- MY CHILD TESTIFY?

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If a child is old enough to express a preference, the court must take it into account. A child over the age of six is generally old enough to express a reasonable preference. Bowers v Bowers, 190 Mich App 51, 55-56; 475 NW2d 394 (1991). A child's stated preference does not automatically outweigh the other best interest factors. Treutle v Treutle, 197 Mich App 690, 694; 495 NW2d 836 (1992). In fact, a change in a child's preference regarding the custodial parent will rarely justify revisiting a custody determination because

""[t]he preferences of the children may be too easily influenced by the break-up of the marriage and competition for their love between the parents. If the children's changed preferences required the grant of a motion for a new trial, the courts would be encouraging the parents to use their children as pawns in the marital break-up. This situation would place undue emotional pressure on the children and parents alike. We will do nothing which might encourage immature parents to use their immature offspring in a high stakes games of psychological roulette." Curylo v Curylo, 104 Mich App 340, 349; 304 NW2d 575 (1981)."

A stipulation of the parties not to interview a child is insufficient on its own. "Regardless whether the parties wished for an interview, the court was affirmatively required to consider the child's preference." 306 Mich App 525; 858 NW2d 57 (2014).

However, an interview may not be necessary if the court is aware of the preference and takes it into account, or if the court determines that a child's expressed preference could not override the other factors. Consider Lambert v Farley, unpublished per curiam decision of the Court of Appeals (Docket No. 301646, June 7, 2011) ("given the trial court's determination that this factor would not affect its evaluation of the children's best interests in light of plaintiff's burden, the trial court's failure to interview the child does not require reversal.") and Edge v Edge, unpublished per curiam opinion of the Court of Appeals (Docket No. 300668, August 23, 2011) ("it is abundantly clear that had the child expressed a preference, even for defendant, it would not have changed the court's ruling, given the court's overall statements and strong feelings on the matter of defendant's hostility and the relationship of that hostility to the child's best interests. Sinicropi, 273 Mich App at 182-183.").

Calling a minor child as a witness in a domestic relations case involving the child's parents is a red flag - it raises a question as to the competency of the calling parent (and his/her attorney) to recognize the danger to the emotional/psychological stability of the child. The Court of Appeals has said that "courts should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to crossexamination." Surman v Surman, 277 Mich App 287, 302; 745 NW2d 802 (2007). An exception to this was identified in Breneman v Breneman, 92 Mich App 336; 284 NW2d 804 (1979), which held that the court may allow a minor child of the parties to testify in open court with regard to alleged abuse and mistreatment inflicted on him by one of his parents. This exception arises when the child is the only other witness to the abuse and refusing to call the child could deny a parent due process.

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