Deciding if Children Should Testify in Court – Rare But Sometimes Necessary
Tom Lemons, Legal Correspondent
July 7, 2021
FLORIDA – Children will say the “darndest things,” often embarrassing mom or dad at inopportune times. Whether it’s something as benign as little Johnny suddenly blurting out a profanity picked up from an adult conversation or as catastrophic as revealing one parent’s illicit drug habit, children are unadulterated parrots. That’s why attorneys will often try to introduce children as witnesses in family law cases because their testimony is nearly incontrovertible. However, not all parties to a case will agree, especially the judge.
According to Florida Family Law Rule 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. But why not? Isn’t it the goal of everyone involved to get to cut through the weeds of adult self-interest and find the truth? That reasoning seems like a no-brainer, but the courts try to protect the best interest of the child above all else. Pitting a child against one parent or the other or forcing a child to choose who they want to live with can have long-lasting damaging effects on their emotions, behavior, and overall mental health.
Ayo & Iken Law Firm partner Jeana Vogel says she prefers children not testify in cases, but “sometimes it’s a necessary evil to get pertinent information in dependency and domestic violence cases.” Vogel says in her experience, judges will opt to use video interviews of children out of the purview of parents and attorneys. In addition, most judges will not allow children under the age of 12 to testify, and 14 is the preferred age if necessary, according to Vogel.
Ayo & Iken Attorney Jason Ponder agrees with Ms. Vogel and says, “Children testifying in divorce or paternity matters, under most circumstances, interjects them into the litigation. Ponder goes on to explain that in his own experiences with family courts, judges believe stress and emotional pitfalls are too overwhelming for children to endure. Motions to hear child testimony are almost always rejected by a judge because there is an extremely high bar for proving “good cause.” However, Ponder believes there are certain circumstances when a child’s testimony is appropriate and should be considered. Ponder says, “I believe if a parent has had little to no physical interactions and has failed to form a relationship with a minor child for a period exceeding half the child’s life, then their testimony would be appropriate. I also believe if a child is of sufficient age to articulate their concerns, understand the consequences of their testimony, can provide an argument based on sound judgment, and can provide specific examples related to their testimony, then their involvement should be considered by the presiding judge.”
In lieu of a child testifying in court, a judge may order the appointment of a Guardian ad Litem (GAL) or social investigator. A Guardian ad Litem will spend time with a child to help determine which parent would be the best fit for majority time-sharing or if a child is in danger of neglect or abuse. Judges will accept the opinion of a Guardian ad Litem, but they are not required to make a ruling based solely on the recommendation.