Rule 23.Presence or testimony of child

Rule 23 protects children from the proceeding itself.

Out of the courtroom

Generally, in actions of parents against each other, or where the conduct of either parent is an issue, children should not be allowed in the courtroom during the taking of testimony.

The trigger is not the case type but the subject matter — any case in which a parent's conduct is at issue, whatever it is called.

Off the stand

Children should not be offered as witnesses as to the misconduct of either parent — except when, in the discretion of the court, it is essential to establish the facts alleged.

"Essential" is a demanding word, and it is doing the work here. Testimony that would be helpful, corroborative or convenient does not meet it. The exception is for the case where the facts cannot be established otherwise.

"Should", not "shall"

Both subsections are phrased as guidance rather than command, and that is deliberate: the rule leaves room for the case that does not fit. But the direction is unmistakable, and a party proposing to call a child bears the weight of it.

The alternative the ruleset provides

Rule 23 would be harsh standing alone — a court cannot decide custody while learning nothing about the child. Rule 22 is the answer: the judge may talk with the children in private conference, individually or together, with a guardian ad litem and the parents' attorneys present if the court permits on timely request.

Other routes to the same information run through Rule 7, which admits school attendance records, report cards, physicians' statements and agency home-investigation reports without calling their authors, and through a guardian ad litem, whose fees Rules 12 and 41 address.