12.3.5 Child Testimony

In domestic violence cases, children are often the only witnesses who can corroborate the victim’s testimony about abuse in the home. But many judges believe strongly that children should not testify because of the risk that the experience of testifying will be traumatic. In some cases, however, the child’s testimony is essential to securing orders of protection that will prevent future harm. The child’s testimony can make it more likely that the child will be safer in the future. But children, like all people, are complicated. They can exhibit a wide range of responses to their experiences of abuse, all of which must be planned for. Clients often accurately predict how children will respond to questioning, and this can help lawyers decide whether to call a child witness and how to prepare.

In Louisiana, children’s testimony in family law cases is generally taken through a Watermeier hearing.1  Although some courts expect attorneys to file motions for a Watermeier hearing if they intend to call a child witness, most courts will not allow child testimony through any other process anyway, unless the child is 16 or over. During a Watermeier hearing, the child’s testimony is taken in chambers on the record rather than in the courtroom, and the questioning is conducted by the judge instead of the attorneys. Attorneys should be allowed to provide proposed questions for the child in advance of the hearing, though there is no guarantee that the judge will ask every question proposed.2  Attorneys are also afforded the opportunity to be present in chambers for the child’s testimony. Opinions differ about this practice. Many attorneys feel strongly that it is essential to be present when the judge speaks to the child, so that he or she can assess whether follow up questions are needed or whether the questioning sufficiently addressed key issues. It can also be important for attorneys to know exactly what was said without the necessity of ordering a transcript because it may be necessary to incorporate the evidence into argument or to present evidence in rebuttal. On the other hand, some attorneys choose to waive their presence in chambers during the child’s testimony, especially if the defendant is pro se and would be entitled to personally sit in on the testimony if the lawyer does. To avoid the possibility of intimidation, it could sometimes make sense to have neither the petitioner’s attorney nor the defendant present. Carefully consider the risks associated with foregoing the opportunity to personally observe the interaction, as well as the risk of intimidation.

If a Watermeier hearing is desired, the attorney should file a motion with the court requesting a hearing to determine whether the Watermeier process is necessary and appropriate for the child. Children who are too young will likely not be allowed to testify, and children over the age of 16 are often required to take the stand to allow for cross examination by an attorney or the other parent.

• 1Watermeier v. Watermeier, 462 So. 2d 1272 (La. App. 5. Cir. 1985).
• 2See D.M.S. v. I.D.S., 2014-0364, p. 5 (La. App. 4 Cir. 3/4/15), 225 So. 3d 1127, 1132 (providing detailed account of Watermeier procedure and factual findings).