Posted on | January 4, 2011 | No Comments
Section 104.006 of the Texas Family Code provides that in a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and:
(1) The child testifies or is available to testify at the proceeding in court… or
(2) The court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child.
Think about this…a young child may have their original outcry reproduced by a substitute witness. I have noted recently that Judges are saying why can’t the child just testify in open court? Doesn’t the witness have the right to confront their accuser in open court just as in a criminal proceeding? Most family lawyers that I know will do just about anything not to have to put a child on the stand. However, another thought, these statutes are designed for younger children. What about children who are over the age of 12? It seems to me that it might be a good idea to have the child available to testify. What are your thoughts????