SHOULD CHILDREN BE PERMITTED TO TESTIFY IN A CUSTODY CASE?
One of the most common questions we get is if children can or should be allowed to testify in a divorce or child custody case. Self-represented litigants in Florida occasionally come to court with a child in anticipation that the child will testify for them. However, there are specific prerequisites that must be followed under the Florida Family Law Rules of Procedure before a party is permitted to bring a child to court to testify. Often clients ask “At what age can my child testify in a Florida divorce case?’ Why maturity can be an issue, age itself is not the main factor use to determine if a child can testify in a divorce case. It is not prudent for a party to bring a child to court unless authorized previously by court order. Florida Family Law Rule of Procedure 12.407 applies to the testimony of children in Family Law Cases. It reads as follows:
(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 Family Law Rules of Procedure August 28, 2019 99 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 adoption proceedings. Florida Family Rules of Procedure 12.407.
I have been practicing in the family law area in Florida for over 15 years and I believe that it is the desire of most judges and Family Law attorneys to avoid using children to testify whenever possible. The principle behind this aspiration is that the child should not be forced to choose between testifying for or against either parent. The importance of maintaining a bond and a positive relationship between the child and parent is paramount. This is especially true during a typically stressful period of time in the child’s life, a divorce usually takes a toll on children. I have found that most judges will either opt-out of allowing the child to be called as a witness. On the rare occasion that the Court does allow testimony from a child, I have seen one judge take the children into his chambers with a court reporter, but without any attorneys present. Although the capacity of each parent to protect the child from continuing litigation under Florida Statute 61.13 is a consideration that a judge should take into account in deciding parenting issues. Perhaps the willingness of a parent to expose a child to the rigors of testimony regarding contested issues might be viewed negatively by some parents.
Florida Statute 92.55 is also relevant in determining whether or not a minor can testify.
In relevant part, the statute states:
(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 proceedings 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. 92.53 and 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;
- (b) The age of the person who has an intellectual disability, the functional capacity of such person, the nature of the offenses or act, the relationship of the person to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the person as a consequence of the defendant’s presence, and any other fact that the court deems relevant; or
- (c) The age of the sexual offense victim or witness when the sexual offense occurred, the relationship of the sexual offense victim or witness to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the sexual offense victim or witness as a consequence of the defendant’s presence, and any other fact that the court deems relevant.
(4) In addition to such other relief provided by law, the court may enter orders limiting the number of times that a child, a person who has an intellectual disability, or a sexual offense victim or witness may be interviewed, prohibiting depositions of the victim or witness, requiring the submission of questions before the examination of the victim or witness, setting the place and conditions for interviewing the victim or witness or for conducting any other proceeding, or permitting or prohibiting the attendance of any person at any proceeding. The court shall enter any order necessary to protect the rights of all parties, including the defendant in any criminal action.
(5) The court may set any other conditions it finds just and appropriate when taking the testimony of a victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness, including the use of a therapy animal or facility dog, in any proceeding involving a sexual offense or child abuse, abandonment, or neglect.
- (a) When deciding whether to permit a victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness to testify with the assistance of a therapy animal or facility dog, the court shall consider the age of the child victim or witness, the age of the sexual offense victim or witness at the time the sexual offense occurred, the interests of the child victim or witness or sexual offense victim or witness, the rights of the parties to the litigation, and any other relevant factor that would facilitate the testimony by the victim or witness under the age of 18, person who has an intellectual disability, or sexual offense victim or witness.
In my view, judges are more likely to allow an older child to testify because:
- it is more likely that an older child will understand questions being asked of him and have the ability to be honest and accurate in his or her testimony than a younger child;
- it is less likely to be emotionally disruptive to an older child to testify compared with a young child; and
- it is more likely that the information gained from an older child’s testimony will be relevant and help the court decide some of the issues.
The court can decide to allow a child to testify in open court. The younger the child, the more likely it is that the court will order the testimony in camera in an effort to protect the child. In the end, it is a balancing that a judge must conduct to decide whether the issue(s) that the child will testify to is important enough to risk compromising the child’s emotional well-being and his or her relationship with the child’s parents. Judges tend to ask if there is another method of presenting evidence other than child testimony, such as a social investigation.
When child testimony is the only way to bring evidence before the court, it has its place. However, the unreliability of child testimony due to misunderstanding, parental influence, and immaturity are all good reasons that alternatives should be sought. Courts would generally prefer that children’s testimony should only be permitted on rare and justifiable occasions.
If you are contemplating a divorce in Florida contact an experienced Jacksonville Divorce Lawyer to discuss your circumstances and objectives.