One of the harder parts of any custody case is deciding to have a child testify in a family law case. Sometimes, a child may be the best, if not only, witness to certain events. And the statute on parenting time includes, as one of its criteria, the reasonable preferences of the child, if the court finds the child to have sufficient intelligence and understanding. I have seen many custody disputes in both Ocala and Gainesville in which one of the parents seeks to have his or her child testify.
Prior to having a child testify, however, a hearing must be held to determine whether there is good cause to bring a child into court. Under the Florida Rules of Family Law Procedure, the testimony must be both necessary and relevant. This is designed to protect any children from unnecessary involvement in the litigation.
Additional rules provide protection to a child who is called as a witness, particularly kids who are the victim of, or who have witnessed, a sexual offense. Section 92.55, Florida Statutes, provides that parents, attorneys and guardians may ask the Court to enter such orders as needed to protect any witness who is under the age of sixteen from severe mental or emotional harm. This protection extends to both the courtroom, and to depositions, where an attorney can ask a witness questions before a court reporter.
Personally, I believe that it’s best to never involve children in any type of family law case, unless it is absolutely necessary.
I have seen 19-year old sons break down on the witness stand during a divorce trial, and it’s hard to watch. The only time it may be necessary is in cases of domestic violence or sexual abuse, and even then strict rules should be set to protect the child witness. However, our custody statute does provide that courts can consider the reasonable preferences of children, and an absolute ban on having children testify violates the Due Process Clause of the Florida and U.S. Constitutions.
If anyone in the North Florida region has a custody dispute, please come see us. We are happy to assist.