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Can My Child be a Witness at Our Divorce Hearing?

In many cases, clients will ask if their minor child can be a witness during their divorce trial. Although many only seek a yes or no answer, there are many details that would need to be discussed before making such a decision. If you are wishing to put your minor child on the stand during your divorce or child custody trial, discuss your options and applicable laws, with your attorney.

In every Florida court, a child’s best interest and their physical, emotional, and mental wellbeing is always being placed as top priority. Therefore, it is rare and difficult to place a child on a witness stand during a divorce proceeding. The court limits a child’s testimony to only severe necessity and emergency, as evaluated by the court. There are two main Florida Statutes that govern child testimony, Florida Family Law Rules of Procedure 12.407 and Florida Statute 92.55.

Under Florida Family Law Rules of Procedure 12.407: “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.” While Florida Statue 92.55 provides: “Upon motion of any party, upon motion of a parent, guardian, attorney, guardian ad litem, or other advocate appointed by the court… for a…witness under the age of 18,… the court may enter any order necessary to protect the…witness in any judicial proceeding or other official proceeding from severe emotional or mental harm…if the… witness is required to testify in open court.”

These statutes can work concurrently, requiring the court to first determine if a child’s testimony is absolutely necessary and relevant to the disputed issues as shown by good cause, then address the impact on the child. Good cause is typically only seen in cases where such testimony is unavailable in any other form, or the issues are material to the case. For instance, evidence as to domestic violence between the parents may be available in the form of testimony from the parties or law enforcement officers who investigated the crime. Therefore, the testimony of the child would be unnecessary. Further, if the issues in dispute are minor such as disparaging remarks by one parent against another, the court will find it unnecessary to subject a child to the court’s testimony for trivial issues. However, if good cause for the testimony of the child is shown, the court will then weigh the value of the testimony in contrast with the age and maturity of the child; the emotional effect the testimony may have on the child; as well as the relationship between the parents and the child.

If the court finds, there is good cause for testimony and the effects on the child are not outweighed by the value of the testimony the court still has options as to the manner in which the testimony may be obtained from the child. For instance, a child psychologist may be appointment to interview and examine the child and document and testify as to the child’s evaluation. Or, the judge may seek to speak with the child privately, in chambers, with the court reporter, and a guardian ad litem, or conduct in camera interviews to avoid the pressure a courtroom, or the parental figures may have on the child during their testimony.

Overall, it is extremely rare to have your child testify during your family law proceedings and it is typically in the best interest of your child to refrain from entering the hostile environment of a courtroom battle. However, if you find it imperative to have the voice of your child be heard, there are manners in which you can ask the court to allow the testimony of your child. Discuss your options and the specific needs of both you and your child with your lawyer before proceeding and they will be able to evaluate your family’s best course of action in your specific situation.

Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.

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