Family Court Has No Duty to Warn Against Perjury

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Family Court Has No Duty to Warn Against Perjury
By Lawrence Wolf, Esquire

The situation often arises where an attorney has a client in a spousal or child support hearing who is called to testify as a witness regarding their ability to pay their wages in substantiation of support payments. Recent cases has shown that it is prudent to advise ones client of his rights against compelled self-incrimination, as established by the Fifth Amendment, and the ramifications of perjury because the family court has no legal obligation to issue such warnings during the proceedings.

Authority was established in People v. Berry, C.A. 4th No. D0114717 (91 Daily Journal D.A.R. 6604), where it was held that a family court does not need to inform a parent in family court of his Miranda rights before testifying.

In that case, the father, Michael Berry, was in a child support modification proceeding where his payment was reduced and set to be taken from his wages. At a later hearing, he testified under oath that the money was being taken from his pay although the County had no record of receiving it.

When testimony showed that those statements were false, he was subsequently tried and convicted for perjury. He appealed, claiming that his appearance on an Order to Show Cause created a duty on the part of the court to advise him of his Fifth Amendment rights before he testified. He contended that since any testimony that showed noncompliance with the original order might subject him to contempt proceedings, the family court review hearing should be considered the equivalent of a criminal matter.

However, since there were no circumstances present that would have indicated to a judge that Berry was giving anything but truthful testimony, it was held that the court was under no duty to advise Berry of his Fifth Amendment rights.