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Rhode Island Divorce Lawyers Ponder whether getting at the Truth is Prohibited in Rhode Island Family Court?

A particular Rhode Island Family Court issue arose a little more than four (4) years ago.  It was in the form of a particular question that I discussed with no less than nine  (9) lawyers only a few of whom I even remember and who shall remain nameless.  

Yet it doesn't matter who the lawyers were.  It matters that I overheard several lawyers who were unfamiliar to me discussing the same question not long ago relating to their own experiences in the Rhode Island Family Court.

The Rhode Island Family Court judges each have discretionary power by law.  Most assuredly they are the authority as to what can and cannot be done in their courtrooms short of a directive from the Chief Judge of the Family Court.

One of the main things that the Rhode Island Family Court judges generally endeavor to do is to protect and preserve the family unit as a whole.  I have not found this wording in any specific manual, statute, treatise, case law or Administrative Order of the Court.  I have learned this consistently from numerous judges over my years of practice in the family courts and before various judges.

Yet I am not the only Rhode Island Attorney who been thwarted in his or her divorce and/or post-divorce efforts at presenting the best representation possible for clients by a judge's prohibition of calling a child of the parties as a witness in a divorce or post-divorce case.  

Now, I understand and agree with the preservation of the family unit.  I am a strong advocate for uncontested divorces, reasonable people, counseling for those who need it, reunification of parents with their children if it is reasonably possible without psychological injury to minor children.

Ultimately I believe this should be a concern of the RI Family Court as a judicial institution as well as the individual family court judges appointed to serve the people and address the countless issues they hear day in and day out both fairly and equitably.

Yet it is disconcerting as a Rhode Island lawyer representing a party in, for instance a post-divorce matter involving the violation of the court's order to (1) be prohibited by a judge from calling a child of the parties as a material witness to defend my client or prove my client's case when the "child of the parties" is no longer a minor and/or when the child of the parties has insisted on testifying to reveal the truth of what he or she knows has occurred, and (2) to then have the judge berate or accuse me or my client of trying to take steps to undermine and possibly destroy the family unit.

Most assuredly, if the child of the parties were a minor of younger years then I might expect some skepticism on the judge's part and the attorney and/or client might well deserve a rebuke in the eyes of some judges.  Yet some judges have prohibited children of the parties who may be as old as 23 and who are married, have children of their own and who may have developed a career that rivals their own parents.  In such cases, wouldn't the prohibition of testimony violate a person's right to present either their case or their defense, notwithstanding a RI Family Court Judge's concern for the preservation of the family unit?

 Perhaps a proper alternative for a 17 year old might be for the RI Judge to speak with the minor child of the parties in camera with counsel so that the judge might determine the nature of the testimony, the level of it's material significance, the weight that might be given to the testimony or even the maturity level of the 17 year old minor child to determine the appropriateness of the testimony.  

Clearly some attorneys might simply call a minor child to the stand and ask questions designed to emotionally injure the other parents by using the minor child merely as a tool.  Such conduct should not be tolerated.  Yet to jump to the conclusion that this is what is happening when one party calls a child of the parties to the stand without further examination or consideration by the judge may place blind faith in mere allegations made by counsel who is zealously representing his or her client and who might clearly benefit by the exclusion of say, the 22 year old daughter who saw and/or heard the father violate the court's order directly and without hesitation.

However, might a better route be for the Judge to suss out the nature of the testimony offered by the child of the parties and it's purpose, determine any possible bias of the child, and consider other pertinent factors.

This would seem to be a more prudent route that would result in a more equitable decision and the pursuit of justice via hearing what may be the clearest indicator of the truth as to what did or did not occur rather than a family court judge simply setting a rule that in his or her courtroom a child of the parties shall not be allowed to testify regardless of age, maturity level, or the direct importance or content of the testimony itself.

There is always the fear that as practitioners before the Rhode Island family court, that if we mention an issue that may be considered by some to be controversial that as legal practitioners we might then become a persona non-gratis (a person not in favor with the court) and thereby risk that judge's will suddenly rule against our clients at every turn.

However, I choose to believe that the members of our judiciary are above such a juvenile standard of conduct.  Absent an extreme and direct encounter with a particular judge to a significantly greater degree, I believe that our judiciary is always cognizant that our family court judges are always aware that they are capable of improvement in their roles in the Rhode Island Judicial System just as we should be as Rhode Island lawyers.

This seems to simply be a matter of counter-balancing the two issues of family preservation with the search for truth with lies in each parties right to present evidence before the court to either made their case or to defend themselves against what may be unfounded allegations.

Therefore, I bring this issue to the forefront more for the consideration of the judiciary and for the betterment both of practitioners and the clients they seek to serve.

I certainly welcome any comments from the court, fellow practitioners and from the general public as I am certainly not beyond learning which I find to be a daily and never-ending practice of improvement to better serve my clients and present information to the court in a way that does not waste the court's time but also presents to the court the information needed for our judiciary to make well-informed, equitable, and just decisions for all.

Happy Holidays to the Members of the Rhode Island Family Court and to all who read my articles.

 

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