When two parties divorce and those two parties have children the whole family getting divorced. Because of this reality, the children should be given special consideration and considered merely another object to be negotiated between the husband and wife. In fact, the children are likely to have strong recollections of what has happened up to and throughout the divorce case. What’s more, the children probably have opinions about the divorce case. But should those opinions be shared in court. Will your children have to testify in a Florida divorce?
That being said, the Florida courts consider the children’s observations, reflections and opinions in a way that fully considers the “best interests of the child” which is also the standard for any custody consideration.
Testimony of a Child in Florida
Florida has a special set of rules of civil procedure just for family law. This is really wonderful because family law does not (and should not) work like other forms of law which consider the facts through “blind justice.” Family law needs to consider that the opposing parties and the parties affected will always have to deal with each other. You cannot provide negative to hateful testimony in search of the truth without it spilling over into the family dynamic…especially with children.
The Florida Family Law Rules of Civil Procedure state that “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 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.” Florida Family Law Rules of Civil Procedure 12.407(a)
So, this means you cannot bring your kids to court in Florida in a divorce case to do any kind of testimony. You cannot bring your children to family court to even watch. You will need to get the judge’s permission for anything involving your children being on court premises in advance.
The rule “don’t bring kids to court” is so iron-clad that the 2018 committee commentary on this rule clarifies children can only be brought to court if they are not related to anyone (ex: educational purposes).
Restricted Testimony of a Child
If a Florida court determines that a child’s testimony is necessary, the court can restrict that testimony in ways to protect the child.
“(1) Upon motion of any party, upon motion of a parent, guardian, attorney, or guardian ad litem for a child under the age of 16 or person with mental retardation, or upon its own motion, the court may enter any order necessary to protect a child under the age of 16…Such orders shall relate to the taking of testimony and shall include, but not be 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.
(2) In ruling upon the motion, the court shall take into consideration:
(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;” § 92.55, Fla. Stat. (2010)
This statute allows the court to restrict the testimony of the child in the best interests of the child. In family law matters, this usually means that the court takes testimony from the children in the judge’s private chambers (in-camera). Instead of a panel of grown-ups (including their parents) the judge will just have a court reporter there for the casual interview “The court shall assure that in camera proceedings with a child outside the presence of other parties are recorded unless otherwise stipulated by the parties.” Florida Rule of Juvenile Procedure 8.620
In my experience, In camera interviews are especially effective in custody cases. Children want to please both parents and will tell each parent, in private, that “I want to live with you.” The children will never actually admit to both parents in a public forum whom they want to live with. But, children will admit to a judge, in private, what their desires actually are.
If there are any questions, the parents and their lawyers can review the court reporter’s transcript.
Typically, Florida courts take children’s recollections and opinions into consideration in a more roundabout way.
“The court, on motion of any party or the court’s own motion, may appoint an expert for an examination, evaluation, testing, or interview of any minor child.” Florida Family Law Rules of Civil Procedure 12.363(a)(1) This expert is usually a psychologist or psychotherapist
Additionally, the interviews with the child may be recorded, “Any order entered under this rule may require that all interviews of the child be recorded and the tapes be maintained as part of the expert’s file.” Florida Family Law Rules of Civil Procedure 12.363(a)(4)
The evaluator finally issues a formal report based on the interview. “[T}he expert shall prepare and provide a written report to each party and the guardian ad litem, if appointed, a reasonable time before any evidentiary hearing on the matter at issue.” Florida Family Law Rules of Civil Procedure 12.363(b)(1)
A social investigator may also be appointed in lieu of a child evaluator. In practical terms, this means a social worker acts as the “eyes and ears of the court” in lieu of the formal expertise of a psychologist.
The social investigator can interview the children but does not have an absolute power to interview the children. If the social investigator’s report is deemed not sufficient, either party can request further interview with the child, “After the written study is furnished to the court, any party may file a motion for an additional expert examination, evaluation, interview, testing, or investigation. The court upon hearing may order the additional examination, evaluation, testing, or interview of the minor child based on the court finding that the investigation is insufficient and that further examinations, testing, interviews, or evaluations of the minor child would be in the best interests of the minor child.” Florida Family Law Rules of Civil Procedure 12.364(f)
Your children should be sheltered as much as possible from the process of your divorce. The proper venue for healing your family during and after a divorce is family therapy not the courts.
To learn more about how to protect your children in and out of court during your divorce, contact my Naples, Florida family law firm to speak with an experienced Florida divorce lawyer.