Domestic violence is hidden and often occurs in the family, so the range of witnesses is actually limited. And the possibility of the child witnessing domestic violence is extremely high, so is the child's testimony credible? Will the court accept the child's testimony? We have the following two real cases in practice, but the court has handled it differently, and let's see what the reasons for the court did this
Domestic violence often occurs within the family
Case 1:
Yao and Wang have been married for many years and have two children, namely Wang and Wang. After marriage, Wang beat Yao many times, and Wang mouyi and Wang mou er witnessed the scene of Wang mou beating Yao mou. Later, Yao filed for divorce and claimed that Wang constituted domestic violence, and demanded that Wang pay compensation for mental damages.
In this case, both the children of Wang and Yao testified in court, both of whom were adults at the time. The court accepted the testimony of the two children and combined other evidence to determine that Wang constituted domestic violence.
But in case two, the court did not accept the child's testimony. What happened in case two?
Case 2:
Qian and Yang have been married for many years and have a son, Yang Mou'er. Yang often scolded Qian and Yang, but Qian has always tolerated it for the sake of his family. But Yang Moumou intensified, and later Qian had no choice but to separate from Yang Mou. Later, Qian filed for divorce and claimed that Yang constituted domestic violence.
In this case, Yang Mou'er also testified in court. At that time, Yang Mou'er was already an adult. Yang Mou'er said: "I am the son of the plaintiff and the defendant, and I testified in court to prove that my father, the defendant, often beat and scolded the plaintiff. One night in January 2015, in the house in Room X of Zhongxin Jiayuan on Malian Road in Xicheng District, my father used a glare flashlight to shine a flashlight into the eyes of the plaintiff, trying to snatch the plaintiff's mobile phone away, because the defendant felt that the plaintiff was sending a message to someone else. The two sides competed for the mobile phone, I got up to give them two a fight, the defendant pushed me away to prevent me from participating in the matter, did not let me manage, and finally the plaintiff called the police, and the police of the Guangwai police station came to deal with the matter. In December 2014, I had a fight with the defendant, who threw my futon and pillow out of the window. After I went to college in 2005, there were often defendants beating and cursing the plaintiffs in my family, and basically once or twice a month, the defendants beat and scolded me and the plaintiffs. In 1999, the defendant often beat and scolded my mother, and I did not have the strength to beat my mother, so I went forward to dissuade her, and the defendant was too strong and was often beaten. When I was in elementary school, the defendants often punched and kicked me, and whenever there was dissatisfaction, they were irritable. I remember hitting me the hardest when I was bruised on the lower part of my body. When I was four or five years old, the defendant called me to his side, and the defendant slapped me if he was not satisfied with the answer. ”
Children may also be victims of domestic violence
However, the above testimony was not accepted by the court. The judge held that there was a contradiction between Yang Mou'er and Yang Mou' er, so his testimony was not accepted. As far as Yang Mou'er's statement is concerned, Yang Mou often beat Yang Mou'er, so it is not excluded that the father-son relationship is not compatible, and there is a contradiction between the two. Therefore, the credibility of Yang Mou'er's testimony was reduced, and the court did not accept Yang Mou'er's testimony.
Judging from the above two cases and other cases we have handled in practice, whether the child's testimony is credible or not, and whether it will be accepted by the court depends on whether the child has the following circumstances:
1. Whether the child has the capacity for civil conduct. Children under the age of 8 are incapacitated, which means that what children at this age do has no legal effect. Minors over the age of eight are persons with limited capacity for civil conduct, and at this age stage they may carry out civil juristic acts appropriate to their age and intelligence. Appearing in court to testify is considered an act appropriate to the intelligence of his age. Although this does not have a clear legal provision, we can infer it. According to the judicial interpretation of the Marriage and Family Code of the Civil Code, if a child who has reached the age of eight is willing to live with the other party, the court shall support it. That is, the law recognizes that children over the age of eight know who they want to live with and have some awareness of their family's living conditions. Therefore, we can also introduce that the testimony court of children who have reached the age of eight can testify in court.
If the child is too young, the testimony may not be recognized
2. Whether the child is in conflict with the other party. In fact, whether the child has a bad relationship with the abusive party, and whether there are some irreconcilable contradictions before. If it exists, then the child's testimony is less credible and may not necessarily be adopted.
3. The party who did not commit violence is not responsible for the child's living expenses, education expenses and other expenses. If the child lives with the non-violent party or even if they do not live together, but the child's daily expenses are borne by the non-violent party, then the credibility of the child's testimony is relatively low. Because the child himself does not have the ability to survive and needs to rely on adult support, and at this time the child has to make testimony against the other party, which naturally weakens the strength of the testimony and may not be accepted by the court.
Therefore, whether a child's testimony can be admissible in court is very complicated in practice and needs to be determined in the context of different circumstances of the case.