In Re Marriage of Swaka: The court said a judge not a jury can evaluate better the testimony and the credibility of a witness — who testified remotely.
By Christina A. Meserve and Charles E. Szurszewski, Family Lawyers
The sole issue in the published portion of this opinion is whether the trial court abused its discretion when it allowed the wife to testify via Skype under Civil Rule 43(a)(1).
The mother had obtained a default dissolution in 2007. She moved to Spain with the children in 2009 and, in 2011, moved for an order permitting her to permanently relocate to Spain. The father objected; the trial court issued a temporary order stating that the children would remain with the mother pending trial on the relocation. That trial took place in 2012. The mother moved for an order permitting her to testify via Skype.
Civil Rule 43(a)(1) provides:
In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.
The question was whether the trial court properly found there was “good cause in compelling circumstances” to permit the testimony via Skype.
While the father argued that inconvenience was not a “compelling circumstance,” the trial court and the Court of Appeals disagreed. The international travel would have been disruptive to the mother and to the children, who would either have traveled with her or had been left in a foreign country in the care of a non-relative.
Two other factors were considered significant. The first was that the son had a serious skin condition which was aggravated by air travel. The second was that a conflict between the mother and her parents caused her to be concerned that they might attempt to interfere with her custody. Apparently, the mother’s parents had threatened to take legal action to get the children back to the United States, including having her arrested.
Finally, the court noted that a judge would be better able than a jury to evaluate the testimony and assess the credibility of a witness who testified remotely.
Christina A. Meserve and Charles E. Szurszewski practice family law in Olympia, Washington with the law firm of Connolly Tacon & Meserve.
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