3.6​Child Witness

A.​Competency

A child is competent to testify as a witness unless “the court finds, after questioning, that the [child] does not have sufficient physical or mental capacity or sense of obligation to testify truthfully or understandably; or [the MREs] provide otherwise.” MRE 601. “For a witness who is a [young] child, a promise to tell the truth takes the place of an oath to tell the truth.” M Crim JI 5.9.

B.​Sexual Act Evidence

In criminal and delinquency proceedings only, a child’s (declarant) statement describing sexual acts performed on or with the defendant or accomplice is admissible, if it corroborates the declarant’s testimony during the same proceeding and:

“(1) the declarant was under the age of ten when the statement was made;

(2) the statement is shown to have been spontaneous and without indication of manufacture;

(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance;

(4) the statement is introduced through the testimony of someone other than the declarant; and

(5) the proponent of the statement makes known to the adverse party the intent to offer it and its particulars sufficiently before the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.” MRE 803A(1)–(5).⁴⁰

Only the declarant’s first corroborative statement is admissible under MRE 803A. However, a statement that is inadmissible under MRE 803A because it is a subsequent corroborative statement is not precluded from being admitted via another hearsay exception. People v Katt, 468 Mich 272, 294-297 (2003) (finding that the statement was admissible under the residual hearsay exception).⁴¹

C.​Custody Proceedings

In camera interview to determine child’s reasonable preference. The scope of an in camera interview of a child is limited to determining the child’s preference and should not cover other best interest of the child factors. In re HRC, 286 Mich App 444, 451-452 (2009). MCR 3.210(C)(5) provides:

“The court may interview the child privately to determine if the child is of sufficient age to express a preference regarding custody, and, if so, the reasonable preference of the child. The court shall focus the interview on these determinations, and the information received shall be applied only to the reasonable preference factor.”

“‘The purpose behind this practice is to reduce the emotional trauma felt by a child required to testify in open court or in front of his or her parents, and to relieve the child of having to openly choose sides.’” Atherton v Atherton, ___ Mich App ___, ___ (2025), quoting In re HRC, 286 Mich App at 451. “Although the judge is limited in his or her line of questioning, the rules of evidence do not apply.” Atherton, ___ Mich App at ___ (cleaned up); see also MRE 1101(b)(6) (providing that the rules of evidence do not apply to in camera proceedings regarding a child’s custodial preference).

In Atherton, “the trial court felt compelled to act swiftly because the information gathered during the in camera interview involved an alarming allegation that defendant had threatened plaintiff’s life.” Atherton, ___ Mich App at ___. Accordingly, “the trial court granted plaintiff sole physical custody of the minor children by completely suspending defendant’s parenting time.” Id. at ___. However, “the trial court committed clear legal error by suspending defendant’s parenting time, based solely on information gathered at an in camera interview, without conducting an evidentiary hearing.” Id. at ___ (“A hearing is required before custody can be changed even on a temporary basis.”) (quotation marks and citation omitted). “The trial court’s . . . order stated that suspension of defendant’s parenting time was in the minor children’s best interests, but this finding was based only on information gathered during the in camera interview, where ‘the information received shall be applied only to the reasonable preference factor.’” Id. at ___, quoting MCR 3.210(C)(5). “The trial court effectively changed physical custody without making findings regarding: (1) whether the change would alter an established custodial environment, which was necessary to establish the burden of proof; and (2) applying the appropriate burden of proof, whether modification was in the children’s best interests.” Atherton, ___ Mich App at ___. “‘A court’s concern for a child’s well-being in a custody proceeding, however, must not outweigh considerations of fundamental fairness in proceedings that affect parental rights.’” Id. at ___, quoting In re HRC, 286 Mich App at 452. “When a trial court believes that there is a threat of imminent harm, including when information is initially learned in an in camera interview, MCR 3.207 provides a legal framework for immediate suspension of custody.” Atherton, ___ Mich App at ___ (“But where, as here, the trial court has not complied with the evidentiary and procedural requirements of MCR 3.207, we cannot countenance its decision to suspend parenting time in such a way as to effect a change in custody without an evidentiary hearing.”). 

Due process considerations.⁴² “Questioning in an in camera interview does not constitute a due process violation as long as the interview is limited to the child’s parental preferences.” Atherton, ___ Mich App at ___ (cleaned up). “Regarding issues other than the child’s preference, a trial court must take testimony in open court because to allow courts to discuss such matters during the in camera interview would constitute a due process violation.” Id. at ___ (cleaned up). Indeed, “use of an in camera interview for fact-finding presents multiple due process problems should questions or answers arise concerning disputed facts unrelated to the child’s preference.” Id. at ___ (cleaned up). “Merely determining a child’s reasonable preference—one of the 12 best-interest factors under MCL 722.23—is not the kind of fact-finding inquiry that requires credibility assessments, weighing evidence, resolving factual conflicts, or robust appellate review.” Atherton, ___ Mich App at ___. “By contrast, other factors bearing on a child’s best interests often involve deeply contested factual disputes that cannot be fairly and reliably resolved behind closed doors, outside the crucible of cross-examination, and with no opportunity to present evidence or create a record for appeal.” Id. at ___. Accordingly, a “‘trial court must take testimony in open court on issues of abuse or mistreatment because to allow courts to discuss such matters during the in camera interview would constitute a due process violation.’” Id. at ___, quoting Surman v Surman, 277 Mich App 287, 302 (2007) (stating “although courts should seek to avoid subjecting children to the distress and trauma resulting from testifying and being cross-examined in court, concerns over the child’s welfare are outweighed when balanced against a parent’s due process rights”).

In Atherton, “the primary basis for the trial court’s decision to suspend parenting time was not the children’s reasonable parental preferences but rather the trial court’s independent determination that defendant had made a statement threatening plaintiff’s life.” Atherton, ___ Mich App at ___. “Although the in camera interview permitted under MCR 3.210(C)(5) provides a useful opportunity for the trial court to consider a child’s reasonable preference when determining their best interests, it is not a substitute for an evidentiary hearing on disputed and potentially outcome-determinative questions of fact about who said what to whom.” Atherton, ___ Mich App at ___. “The trial court committed clear legal error by suspending defendant’s parenting time, effectively modifying physical custody, based solely on information gathered during an in camera interview, without holding an evidentiary hearing, making required findings, or complying with the requirements of MCR 3.207.” Atherton, ___ Mich App at ___.