Czy dziecko może być świadkiem w sprawie o rozwód?

„Żona wniosła pozew o rozwód, ograniczenie władzy rodzicielskiej i zasądzenie alimentów na rzecz córki. Wniosła także o przeprowadzenie dowodu z przesłuchania w charakterze świadka naszej małoletniej córki. Czy dziecko może być świadkiem w sprawie o rozwód?”.

Zgodnie polskim prawem małoletni, którzy nie ukończyli 13 lat oraz DZIECI stron, które nie ukończyły 17 lat, nie mogą być przesłuchiwani w charakterze świadków.

Powyższy zakaz ma charakter bezwzględny a więc nie może być uchylany ani przez sąd, ani przez wymienione osoby czy też strony. Zakaz ten dotyczy formalnego przeprowadzenia dowodu z zeznań świadków, NIE WYKLUCZA natomiast informacyjnego przesłuchania dzieci (nie ma granicy wieku!), o czym mowa w dalszej części.

Sąd zazwyczaj za pośrednictwem KURATORA ZAWODOWEGO przeprowadza wywiad środowiskowy (ma on obowiązek zebrać informacje o warunkach życia dziecka z możliwie każdego źródła: sąsiedztwa, przedszkola czy szkoły) i zasięga opinii specjalistycznej placówki np. Rodzinnego Ośrodka Diagnostyczno – Konsultacyjnego, tzw. RODK, którego celem jest ustalenie specyfiki więzi rodzinnych.

Dzięki nowelizacji prawa w 2009 r., sąd może również wydać decyzję o tzw. wysłuchaniu informacyjnym dziecka, jeżeli jego rozwój umysłowy, stan zdrowia i stopień dojrzałości na to pozwala. Wysłuchanie to powinno dotyczyć tych spraw, które dziecka dotyczą, czyli władzy rodzicielskiej czy kontaktów z rodzicami. Wysłuchanie to powinno się odbyć poza salą posiedzeń sądowych w tzw. „przyjaznym pokoju”, który spełniając ściśle określone wymogi techniczne i formalne, zapewni maksimum dyskrecji, stworzy atmosferę rozmowy, a przy tym umożliwi przeniesienie rozmowy na nośnik, stanowiący dowód dla sądu. Przyjazne pokoje mają zminimalizować czynniki stresogenne i sprawić, że dziecko będzie się czuło podczas przesłuchania komfortowo. Aby było to możliwe, pokój musi dzielić się na dwa odrębne pomieszczenia: miejsce zaaranżowane na pokój dziecka, w którym z dzieckiem rozmawiać będzie biegły psycholog oraz sędzia i pokój techniczny, w którym będą przebywać osoby obserwujące przesłuchanie. Przesłuchanie jest rejestrowane za pomocą sprzętu audiowizualnego, dzięki czemu podczas faktycznej rozprawy sąd może udostępnić stronom obraz prezentujący zeznania świadka. Przesłuchanie prowadzić może tylko osoba uprawniona do realizacji czynności procesowych z udziałem dzieci – zwykle jest to BIEGŁY PSYCHOLOG.

Przesłuchanie małoletniego dziecka składa się z DWÓCH ETAPÓW. Pierwszym etapem jest luźna rozmowa z dzieckiem, której najważniejszymi elementami są rozpoznanie stanu rozwoju dziecka, w szczególności zdolności do odróżnienia prawdy od kłamstwa oraz wyjaśnienie dziecku zasad przesłuchania oraz rejestrowania rozmowy. Drugim etapem jest zadawanie pytań. Z przesłuchania tego sporządzany jest protokół, do którego załączany jest zapis dźwięku lub obrazu.

Ponieważ Sąd zobowiązany jest zapewnić dziecku komfort, atmosferę intymności i poczucie bezpieczeństwa umożliwiające mu pełną swobodę wypowiedzi może on zarządzić, iż podczas przesłuchania dziecka, rodzice nie będą mogli być obecni, gdyż często obecność ta powoduje u dziecka skrępowanie.

WAŻNE: dziecko może być świadkiem w sprawie o rozwód, jeżeli ukończyło 17 lat, ale przysługuje mu prawo do odmowy zeznań. Ponadto, z prawa odmowy zeznań w charakterze świadka mogą skorzystać także wstępni stron (a więc rodzice, dziadkowie), zstępni (dzieci, wnuki), rodzeństwo oraz powinowaci w tej samej linii lub stopniu (teść, teściowa, zięć, synowa, a także dziadkowie i wnuki małżonka).

Na koniec warto dodać, że Sądy niechętnie korzystają z instytucji tzw. wysłuchania informacyjnego dziecka. Chętnie za to zasięgają opinii RODK, w którym dziecko (jak i rodzice) przesłuchiwane jest w obecności zazwyczaj dwóch psychologów.

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