Children Can Testify in Custody Disputes

In Surman v. Surman, the trial court allowed a 12-year-old boy to testify in open court during a custody trial regarding what type of abuse had occurred between the child and his father. The Appellant-Father argued on appeal that the trial court should not have allowed any open court testimony by his son in a custody battle. The Court of Appeals affirmed the trial court and concluded that a child’s testimony in open court during a custody dispute is appropriate when the testimony bears on allegations of abuse and neglect.

The Court of Appeals reasoned that in abuse and neglect cases, the child involved in the incident is often the only available witness with firsthand knowledge of what happened. Thus, the child has to be allowed to testify as to these incidents in open court in order to prevent infringement on the allegedly abusive parent’s due process rights. If the court were to conduct this interview regarding abuse in camera, there is a good possibility the accused parent’s due process rights would be violated. This is particularly important when there are allegations of abuse because the trial court “is called upon to make credibility determinations, weigh the evidence, and, most importantly, resolve factual conflicts, all of which must be supported by the great weight of the evidence.” The evidence presented regarding the abuse and neglect allegations directly ties into the trial court’s best interests analysis.

Dog attack not "provoked"

On January 8, 2008, the Court of Appeals issued a published opinion analyzing Section 287.351 of the dog bite statute in Koivisto v Davis. In that case, two huskeys managed to escape from the kennel where they were being boarded and came over to the plaintiff's yard. The plaintiff was sitting on her back porch with her two cats. The dogs attacked the cats, and in the process of trying to save her cats, the plaintiff sustained 28 puncture wounds to her hands, which may result in permanent nerve damage.

Under Michigan statute, "[i]f a dog bites a person, without provocation . . . the owner of the dog shall be liable for any damages suffered by the person bitten..." MCL 287.351(1). The Court in Koivisto examined whether the dogs had been provoked by the plaintiff when she gouged their eyes and took other steps to defend her cats. The Court concluded that the plaintiff did not provoke the dogs, because when the dogs came on to her property they were already provoked. The Court noted that when the dogs entered plaintiff's property, they "immediately exhibited vicious and aggressive behaviors" and concluded that plaintiff's response to that aggression could not amount to "provocation" under the statute because they had exhibited this aggressiveness before plaintiff took any action to defend her cats.

Two interesting notes on this case: (1) the Court of Appeals seems to be publishing more per curiam opinions. It would be nice for the judges to take credit for their opinions, and (2) apparently not an issue in this appeal, was whether the dog owner's liability could be limited in anyway by the fact that the dogs were at a kennel when they escaped, rather than in the owner's care. I would think that the owners should be able to bring an indemnity (or some other action) against the kennel owners.