Opinion
O-15016/08/10D
12-09-2010
Z. Shareef, Petitioner v. M. Hassen, Respondent
Robert E. Silverberg, Esq. for the petitioner John Marotta, Esq. for the respondent Hector Santiago, Esq. for the child
Robert E. Silverberg, Esq. for the petitioner
John Marotta, Esq. for the respondent
Hector Santiago, Esq. for the child
Edwina G. Richardson-Mendelson, J.
On or about February 5, 2010 the Petitioner, Z. Shareef (hereinafter, "Petitioner"), filed a petition alleging that the Respondent, M. Hassen (hereinafter, "Respondent"), violated a final Order of Protection issued by this Court on August 11, 2009.
On October 21, 2010, the Petitioner filed this motion seeking an order permitting her six year old son, M. H., to testify at the continued fact-finding hearing outside the presence of the Respondent, via closed circuit camera. The Petitioner claims such an order is necessary because of 1) the age of the witness, 2) the likelihood that taking the testimony of the child in the presence of the Respondent would be detrimental to the child's well being, and 3) the greater risk that the child testifying in the Respondent's presence would undermine the child's ability to testify accurately and without inhibition. The Respondent submitted an Affirmation in Opposition to the motion.
The court denies the motion.
DISCUSSION
Every litigant has a fundamental due process right and 6th amendment right of confrontation under both the United States Constitution and the New York State Constitution, to confront the witnesses against them, including child witnesses. In re Cecilia R., 36 NY2d 317 (NY 1975). However, this right is not absolute in civil proceedings. In re Dean L., 109 AD2d 87 (NY App. Div. 4th Dep't 1985). The court has allowed child witnesses to testify outside the presence of the respondent, where the respondent's attorney is present during the witness's testimony and is able to cross-examine the witness on the respondent's behalf. Matter of Lindsey
BB. v. Ruth BB., 70 AD3d 1205 (NY App. Div. 3d Dep't 2010).
The court has considerable discretion to devise procedures to protect vulnerable child witnesses. In constructing such a procedure, the court balances the due process right of the accused with the mental and emotional well-being of the child. In re S. Children, 102 Misc 2d 1015, 1017 (NY Fam. Ct. 1980). There is no presumption of harm to a child who testifies in the presence of the respondent. Department of Social Services v. Phillip C., NYLJ, November 18, 1991, pg. 33, col. 4(Fam. Ct. Ulster Co.). The petitioner has the burden to establish the potential of harm to the child with specific evidence to warrant the respondent's exclusion. In re S. Children, 102 Misc 2d 1015, 1017 (NY Fam. Ct. 1980). Id.
In the instant motion, although the Petitioner contends that her six year old son is scared of the Respondent and therefore it will be too traumatic for him to testify in the Respondent's presence (Petitioner's Affidavit, ¶ 4), no specific evidence supporting serious mental or emotional harm to the child has been presented. Although, the Court is sensitive to the age of the witness, this factor alone does not outweigh the Respondent's right of confrontation. Petitioner, therefore has not met the burden of establishing potential harm to the child witness warranting the relief requested.
Moreover, cases where child witnesses were allowed to testify via two-way-camera are distinguishable from the present matter before the Court. Such case law concern child witnesses testifying to incidents of sexual abuse alleged to have been committed by the respondent. The allegations in the instant matter involve the Respondent physically hitting the child witness on one occasion.
Accordingly, the motion allowing the child witness to testify via closed circuit camera is denied.
This constitutes the decision and order of the court.
ENTER:
_____________________________________
Edwina G. Richardson-Mendelson
Judge of the Family Court
Dated: Jamaica, New York
December 9, 2010