Testimony by Minors in Family Court Litigation

Florida law does not permit children to testify or be deposed in family court proceedings. This measure was designed to ensure that children are protected as much as possible from the dissension and stress that often come hand in hand with divorce and child custody matters. If you are contemplating a separation and have children, it is vital that you contact an experienced family law attorney who can help ensure that the rights of all parties, including your children, are protected.

Current Law

The Florida family courts adopted Rule 12.407 in 1995 in an effort to provide an additional layer of protection to minor children who may be traumatized by unnecessary involvement in litigation. The Florida Court Rules of Procedure state that minor children are not permitted to be:

  • Deposed;
  • Brought to a deposition;
  • Brought to court to appear as a witness or attend a hearing; or
  • Subpoenaed to appear at a hearing.

If a parent still believes that a child’s testimony is vital to a case, he or she must make a motion to the court. After reading the motion, a judge orders a hearing on the issue and, after listening to arguments from both parties, determines whether the child’s testimony contains information that is necessary and relevant to the legal issue at hand. Judges are also urged to take additional factors into consideration, including:

  • The age of the child;
  • The nature of the court action;
  • The child’s relationship to the parties; and
  • Any possibility that the experience will be traumatic to the child.

Judges are granted broad discretion in their assessments of whether a child’s testimony is necessary to the fair conclusion of a legal issue, although most judges err on the side of restricting the use of a child’s testimony in court. However, if a judge determines that there is good cause for the child’s testimony to be heard by the court, he or she issues a court order that allows the child to testify.

In Camera Interview

In the event that a judge does issue an order compelling a child to testify, the examination is usually in camera, meaning in private. In camera examinations most often take place in a judge’s office without the presence of parents or any members of the public. A court reporter, however, is allowed to attend in order to properly transcribe the child’s testimony. Afterward, the child’s parents are given a record of the interview. In fact, Florida law requires courts to ensure that a child’s testimony is recorded unless otherwise stipulated by the parties. Numerous courts have reiterated that a failure to prepare an accurate record of a child’s in camera testimony is a violation of due process.

The litigation process in a family law case can be confusing and emotional for any children that are involved. If you are considering a divorce or are engaged in custody proceedings or another family law issue in which children are involved, please contact the experienced West Palm Beach family law attorney William Wallshein for a free consultation.