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| Dec 12, 2020 | divorce |

Can your minor children be called to testify in Florida divorce proceedings?

It is unsettling and maybe even frightening to think of putting your minor child on the stand in open court in your divorce or custody proceeding. The issues about which your child might have to testify concern the child’s future, private family matters and their parents’ disputes – things hard to talk about even in informal situations, especially when the subject is so personal and their words may upset either or both parents. 

Court rule limits child witnesses

In family law proceedings, including divorces and those involving child custody (but not uncontested adoptions), Florida Family Law Rules of Procedure Rule 12.407 limits child involvement when the child is a potential witness or is related to the case. The court will not allow the child to testify or attend a deposition or court proceeding nor may such a child be subpoenaed to appear – unless the court first issues an order allowing the attendance or testimony because the court found evidence supporting “good cause” for that appearance.

This rule prevents a parent from hauling their child in to testify about sensitive matters without a judicial finding of good cause. The Court Commentary published alongside the rule explains that it is meant to avoid “unnecessary involvement” of minor kids in family law litigation. While a full prohibition on child testimony is not allowed because a parent may need the testimony so they get due process – a basic constitutional fairness requirement – at least the judge must decide first that the child’s testimony is “necessary and relevant to issues before the court,” explains the comment. 

Florida courts allow judges to question children in chambers 

If the judge found good cause for a child’s testimony, the judge may decide to interview the child privately in chambers (the judge’s office) away from the courtroom. In the recent case of Talarico v. Talarico from the Florida District Court of Appeal, Third District, (not yet released for publication as of this Dec. 11 writing), the court explained that when shared parental responsibility (decision making responsibility for major life decisions for the child) is at issue, the court must consider the child’s “reasonable preference” if they are of “sufficient intelligence, understanding, and experience to express a preference.”

Yet, the court quoted a Virginia case that aptly noted that no one involved in the proceedings “[relish] the spectacle of a child testifying in open court as to his or her preference for one parent over another” and because it can be so emotionally traumatic, most states prefer an in-camera interview of the child instead. Also, Florida courts have noted that it might be hard to get the child’s true opinion about their parents in front of them.

The Talarico court said, however, that due process requires either that the interview be recorded or at least summarized for the parents so that they can challenge the content of the testimony in the proceeding. If the in-camera testimony of the child is the only evidence supporting a judge’s decision, it would not be fair for a parent against which the evidence goes because the parent could not present disputing evidence.

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The Law Office of Forrest & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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