CHILD TESTIMONY IN FLORIDA CUSTODY AND DIVORCE CASES
It is not uncommon for a party in a Florida divorce or family law case to seek testimony from a child, particularly when time-sharing (a.k.a. “custody”) is at issue. On occasion, a self-represented party will show up to court in one of my hearings with the parties’ child to testify. Appearing in court with a child without a prior court order is not a good strategy for a couple of reasons: 1) most family law judges strive to keep children out of family law disputes; 2) Florida law imposes specific requirements for child testimony.
Most Florida family law judges, and experienced family law practitioners, want to keep children out of conflicts between parents. Divorce and time-sharing disputes are hard enough on children; bringing a child to testify in court can place additional strain on a child. Unless there is a compelling reason for a child’s testimony, it is usually not a good strategy to request child testimony in family law cases. Why? One of the statutory factors Florida judges use to make time-sharing decisions states the court should consider “[t]he capacity and disposition of each parent to protect the child from the ongoing litigation…” Fla. Stat. §61.13 (r). While this time-sharing factor will not be used when ruling on a motion to allow child testimony, it provides insight into the thought process used by family law judges when ruling on time-sharing issues.
FLORIDA CHILD TESTIMONY LAW
Assuming there is a compelling reason to bring a child into court to testify, a motion must be filed with the court asking the court to allow a child to testify. The motion should be filed well in advance of hearing or trial, because the court will usually conduct a separate hearing on the motion. Child testimony in Florida family law cases is governed by Florida Family Law Rules of Procedure, Rule 12.407 and Florida Statutes Section 92.55
Florida Family Law Rules of Procedure, Rule 12.407 states:
“(a) Prohibition. Unless otherwise provided by law or another rule of
procedure, children who are witnesses, potential witnesses, or related to a family
law case, are prohibited from being deposed or brought to a deposition, from being
subpoenaed to appear at any family law proceeding, or from attending any family
law proceedings without prior order of the court based on good cause shown.
(b) Related Proceedings. In a family law proceeding held concurrently
with a proceeding governed by the Florida Rules of Juvenile Procedure, the Florida
Rules of Juvenile Procedure govern as to the child’s appearance in court.
(c) Uncontested Adoption. This rule does not apply to uncontested
Florida Statutes Section 92.55 states in relevant part:
“(2) Upon motion of any party, upon motion of a parent, guardian, attorney, guardian ad litem, or other advocate appointed by the court under s. 914.17 for a victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness, or upon its own motion, the court may enter any order necessary to protect the victim or witness in any judicial proceeding or other official proceeding from severe emotional or mental harm due to the presence of the defendant if the victim or witness is required to testify in open court. Such orders must relate to the taking of testimony and include, but are not limited to:
(a) Interviewing or the taking of depositions as part of a civil or criminal proceeding.
(b) Examination and cross-examination for the purpose of qualifying as a witness or testifying in any proceeding.
(c) The use of testimony taken outside of the courtroom, including proceedings under ss. 92.53and 92.54.
(3) In ruling upon the motion, the court shall consider:
(a) The age of the child, the nature of the offense or act, the relationship of the child to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the child as a consequence of the defendant’s presence, and any other fact that the court deems relevant;”
Family law judges typically weigh the need for testimony from a child (i.e., there are no other ways to bring in the evidence at trial) and the gravity of the issue (e.g., domestic violence, substance abuse, ect.) against the trauma of bringing a child into court to testify. Relatively minor issues, such as a parent disparaging another parent, will likely carry less weight than allegations of substance abuse, child endangerment or domestic violence.
In addition to weighing the need for testimony and the importance of the issue(s), courts will look at the age of the child. A court is more likely to allow a teenager to testify than a small child.
While courts have the option of allowing a child to testify in open court, courts often conduct in-camera interviews to avoid undue pressure on a child. Courts have the option of excluding the parties and their attorneys from an in-camera interview of a child so long as a court reporter is present. See Hickey v. Burlinson, 33 So. 827, 831 (Fla. 5Th DCA 2010).
Motions to allow child testimony should concern important issues in the case. A request for child testimony should not be taken lightly. Before filing a motion for child testimony, ask if there are other ways to bring in the evidence? In some cases, a social investigation may be the best way to bring in the evidence needed to prove an issue. Prior to filing a motion to allow child testimony, you should consult with a family law attorney in your area. This blog post is no substitute for sitting down with an attorney who can apply the law to the facts of your case.
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