KIDS IN CAMERA; Children’s Evidence in Abuse Cases

The April 1 Superior Court decision in Thorne v. Thorne is, on its surface, not that interesting. The Thornes have two children and an incident occurred in August 2024 which culminated in Lori Thorne being arrested and sued by Timothy Thorne to secure a protection from abuse order for himself and their two children.

There were some procedural problems arising because Ms. Thorne was incarcerated on the charges but a hearing was held on September 23, 2024. On that date she again asked to adjourn the matter to obtain counsel. The judge elected to proceed as the matter had already been postponed once.

Here the absence of facts again makes analysis difficult. The opinion states that the testimony presented came from Ms. Thorne (the defendant) and the two children. We don’t know the ages of the kids, but it certainly seems odd that Mr. Thorne did not testify in support of his claim. But, we digress. When the children were called, the trial court indicated that it would hear their testimony in camera, which is to say outside the courtroom.

Ms. Thorne did not attend the testimony of the children and that was the basis of her appeal. Specifically, she was denied the opportunity to cross examine two witnesses who were presented in support of her husband’s claims of abuse. As one might expect, her appeal came because abuse was found and an order entered.

The Superior Court affirmed on a basis that can’t really be challenged. The appellant never formally objected to the judge’s decision to interview the children outside her presence, albeit on the record. People who represent themselves often suffer from this self inflicted procedural wound. The appellate decision acknowledges the right to confront witnesses has a constitutional dimension but nonetheless is waived unless asserted on the record. So, the ruling can’t really be faulted from a procedural point of view.

But as we read the decision, it is troublesome substantively. One of the hallmarks of our judicial system is that proceedings are conducted in open court. The Superior Court decided in 1986 that there existed a common law rule, which also confers a public right of access to court records,  that every person is entitled to access “provided he has an interest therein for some useful purposes and not for mere curiosity.” Katz v. Katz 514 A.2d 1374; 24 Am.Jur.2d Divorce and Separation § 341, at 410 (1983). This common law right of access, is not absolute. In re National Broadcasting Co., 653 F.2d 609, 613 (D.C.Cir. 1981). Every court has supervisory powers over civil proceedings in progress before it. And may deny access where such access may become a vehicle for harmful or improper purposes. See: Nixon v. Warner Communications, Inc., 435 U.S. at 598. Thus, the public may be “excluded, temporarily or permanently, from court proceedings or the records of court proceedings to protect private as well as public interests: to protect trade secrets, or the privacy and reputations [of innocent parties], as well as to guard against risks to national security interests, and to minimize the danger of an unfair trial by adverse publicity.” In re National Broadcasting Co., supra at 613.

As the reader can glean, Katz and the related cases cited have to do with public access to judicial proceedings. Harold Katz was the owner of the Philadelphia 76ers when the press asked to attend his divorce proceedings. It produced a balancing test ruling on remand to the trial court. But in Thorne we have a garden variety protection from abuse case where it appears the Thorne children were central witnesses in deciding whether they and their father needed civil protection from their mother. There is no indication that the petitioner/father asked for the proceedings to be outside the court. In fact, the decision appears to acknowledge that the judge took it upon himself to close the testimony to the petitioner and respondent. Neither parent heard what the children were asked or what they said during a proceeding that resonates throughout any future custody proceedings. 23 Pa.C.S. 5328(a)(2).

In any other form of civil proceedings, a judge’s sua sponte decisions to conduct a hearing outside the courtroom would have lawyers and the public scratching their heads. “What’s the judge doing in there?” I recall attending the Katz divorcehearing on closing the court while a young lawyer and the arguments of the parties and the local press went on for hours before the judge decided to close the courtroom. But he did let the parties attend.

Just how the Thorne abuse hearing should have proceeded does present some “thorny” questions. I have witnessed elementary school aged children being told to “take the stand” in a setting where their parents are seated 20 feet away. That’s harrowing. But, given the grave nature and consequence of abuse proceedings, children over twelve should be presumed to be capable of offering competent testimony without being unduly intimidated by the courtroom setting.

As for small children, which is to say 12 and under, most courtrooms are more intimidating than encouraging.  Here, perhaps a robing room or chambers setting may be more appropriate but the right of the litigating parents to see and hear the proceedings is vital. Unlike custody proceedings where the court is examining a full range of parent-child contacts, an abuse proceeding typically involves specific speech or physical threats that either did or did not occur. If there is concern that a parent may intimidate the child to influence testimony, we now have electronic means by which a parent and his/her lawyer can see the child testify without being “in the room.”

We don’t know the ages of the children involved nor the nature of the conduct which produced the filing. But it seems incongruous that a parent can be found to have abused her children without ever knowing what they said. This is even more concerning in a setting where there is no reference to their father having testified to what prompted him to seek Protection from Abuse.