Juvenile Court Erred In Excluding Teenage Daughter’s Testimony In Custody Dispute

Wallace v. Wallace, [Ms. 2200120, Sept. 24, 2021] __ So. 3d __ (Ala. Civ. App. 2021). The court (Edwards, J.; Thompson, P. J., and Moore, Hanson, and Fridy, JJ., concur) reverses the Baldwin County Circuit Court’s judgment sustaining the mother’s objection to the father’s relocation to North Carolina with the parties’ minor children and awarding custody to the mother. The court concludes that the trial court’s refusal to allow the parties’ teenager daughter to testify was reversible error. The court cites prior precedent holding that “‘[i]n Alabama, there is no statutory prohibition against children testifying in a divorce case so long as they are otherwise competent to testify. Testimony of competent children in a divorce action must be admitted, if relevant, otherwise admissible, and not merely cumulative. In this case, so far as it appears, the fifteen-year-old son would have been able to understand the nature of the oath and would likewise have been competent to testify. Ala. Code 1975, § 12-21-165.’ Ex parte Harris, 461 So. 2d [1332, 1333-34 (Ala. 1984)].” Ms. *11.

The court rejects the trial court’s rationale that an offer of proof was sufficient substitute for the daughter’s testimony, “our supreme court explained in Ex parte Harris that ‘[a]n offer of proof, although preserving the record on appeal, is an insufficient substitute for the witness’s testimony.’” Ms. *13. The court also concludes that the daughter’s testimony was not cumulative because “‘[a] party has a fundamental right to introduce evidence which is competent, otherwise admissible, and relevant to the material issues being tried. Accordingly, any doubt as to whether the testimony was cumulative should be resolved in favor of the party who would call the witness to the stand.’” Ms. *16.

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