One of the many questions that I get asked is whether or not kids can be brought to court as witnesses in a divorce or family law proceeding. Generally speaking the answer in most cases is probably not.
One of the common misconceptions is that Florida allows a child to decide which parent they want to live with. Part of this misconception comes from the fact that other states may allow this, or that Florida Statute §61.13 (i) states that one of the factors judges must consider in establishing or modifying a parenting plan is:
“The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. “
This conflicts directly with Florida Rule of Family Law Procedure 12.407 which states as follows:
“ No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.”
The Courts have tended to side on the fact that children generally should not be brought to court to testify. The reason behind this is simple. The courts do not want to put the children in the middle of their dispute and have them pick sides. However, sometimes it is necessary for a child to testify, but in those cases you have to get the judge’s permission and the only way to do that is to show the court that good cause exists for the child to testify, absent an emergency.
One of the things the judge will look for in a family case is if the child knows the truth from a lie. Additionally, they will seek to determine the intelligence, understanding, experience and maturity of the child. The primary driving force is always what is in the best interest of the child. Some seventeen year olds, if given the opportunity to choose, would pick the parent who lets them have more freedom and less rules to abide by. In most cases, this would not be in their best interest.
If a child is allowed to testify, then the judge is required to take special care to protect a witness under the age 14 from questions that are in a form that cannot reasonably be understood by a person of the age and understanding of the witness, and shall take special care to restrict the unnecessary repetition of questions.
Furthermore, a judge is very likely to have the child testify in camera. Which means the child will testify outside the eyes and ears of his or her parents.
It is always a tricky proposition to have minor children testify in family law cases, especially divorce. If you have any questions about having children testify in court, please give us a call. Andrew G. Storie is a family law and divorce attorney who serves Orlando and all of Central Florida. For more information, or if you are contemplating a divorce or modification of your parenting plan please call us at (407) 890-1291.