dissenting: I concur with the dissenting opinion of the Chief Justice; however, I write separately to emphasize the need *55for extraordinary caution in cases, such as this, where a child of parents involved in a “bitter custody and marital dispute” alleges abuse, either of a physical or sexual nature. Common sense tells us that these unfortunate children are all too often placed in a veritable vise between the two warring parents. The intense pressure upon the child to testify in a fashion that will aid one of the parents in their dispute is all too obvious.
The law is clear: the child witness, in order to be found to be competent, must meet two criteria. He or she (1) must understand the difference between truth and falsehood and (2) must appreciate the obligation to tell the truth. See generally Myers, The Testimonial Competence of Children, 25 J. Fam. L. 287, 327-35 (1986-87).
In this case, a thorough review of the record reveals not a scintilla of evidence that the alleged child-victim, Shane Kelley, understood the difference between truth and falsehood. He was never asked a single question from which a reviewing court could conclude that he met the first test, that he understood the difference between truth and falsehood. Thus, we have a record that is completely devoid of this critical evidence. The majority is left to uphold the conviction only upon the trial judge’s finding, within his “sound discretion,” that the child is competent to testify. The record of the child’s competency in this case is virtually unreviewable by this or any appellate court.
The trial court’s conclusion that the alleged child victim was competent to testify, when he states that the child had the ability to observe and narrate “as well as any four-year-old,” offers little comfort to us. What if the trial court had found that the child had the ability to observe and narrate as well as any two-year-old? Would we allow a defendant to be deprived of his liberty simply because the child has the “average” ability of a child of the age of the alleged victim, absent a showing that the “average” child of that age knows the difference between truth and falsehood?
The record indicates that the second test for a child’s competency, that he appreciates the obligation to tell the truth, was also not met in this case. In the Chief Justice’s dissent, the relevant colloquy is set out at length. Had the trial judge received an answer to the first question, “Does something happen if you don’t tell the truth?,” then an appellate court might have the necessary record to decide if the child had the requisite appreciation of the obligation to tell the truth. However, no answer to that question alone was given. We can only speculate as to what the child would have answered. The record as to that question is thus unreviewable. Further, the trial judge received *56no direct answer to the second question, “Does anything bad happen or somebody do something to you if you don’t tell the truth?” Had an answer been given, an appellate court could possibly discern whether the child appreciated the obligation to tell the truth. Again, this blurred colloquy offers no reviewable record for an appellate court on the crucial issue of the child’s competency.
The third question only served to further muddy the waters and make the child’s answer to the combined three questions incomprehensible and completely unreviewable. The question was, “Will your mommy be upset and your daddy be upset?” Upset about what? The child’s “daddy,” Jerry Kelley, obviously wanted the child to say that the defendant, Kelly Mills, had abused him, and would be “upset” if the child said otherwise. On the other hand, his “mommy,” Barbara Mills, would be “upset” if the child named her then-husband, the defendant, Kelly Mills, as the one who had abused him. It is of little surprise that the child could not articulate an answer to this question, but only nodded his head. Quite obviously, given the circumstances, one of his parents would be “upset,” no matter what his testimony would be during the trial. That the child later allegedly recanted his testimony, when, as the majority points out, both natural parents were urging a totally divergent view of the “truth” upon the child, is not surprising. When a very young child is brought into the middle of a “bitter custody dispute,” the child’s personal bewilderment can be easily understood. The child’s testimony, in the divorce proceeding itself, should be viewed with extreme caution. The child’s testimony in a criminal proceeding at the time of bitter marital proceedings must be subject to extraordinary caution. The child’s testimony should be allowed only after the most careful and precise questioning to determine if the child is, at that moment in time, free of parental or other influence, and that the child fully and completely understands (1) the difference between truth and falsehood and (2) the obligation to tell the truth.
The record in this case deprives the defendant of meaningful appellate review of his conviction. I would remand this case for a new trial and, therefore, respectfully dissent.