Written by: Lenorae Atter, Attorney
In the Jacksonville, Florida family law courts there is a debate as to when a child is old enough to provide relevant testimony in a divorce or custody proceeding. Many of my clients often want their child to testify as to what their wishes are, regardless of the child’s age. However, the courts value the testimony of the children, but also believe, and rightfully so, that the child should be of an age of maturity to fully understand what she or he is testifying to and that would be difficult to do if the child is under a certain age. The majority of judges feel that a child’s testimony should be elicited at no sooner than 13 years of age. The Florida legislature has not provided a specific age-range to judges, so the discretion really rests with the court to decide.
Florida Statute 92.55 provides for the use of witnesses for children that are under 16 years of age and for witnesses that suffer from a mental handicap or have other special needs. In order for a child to testify, the party requesting such testimony must submit a motion to the court asking for permission for the child to testify. Normally, in a family law proceeding, the request is for the child’s testimony outside of the presence of either parent and his/her attorneys, also known as “in camera testimony.”
In determining whether a child should provide testimony to the court, Florida Statute 92.55(2) provides guidelines for eh Judge to consider. Those guidelines include the following determinations:
(a) The actual age of the child, the nature of the court action, the child’s relationship to the parties (i.e. child of the parents going through the court system), the possible trauma that would result to the child if testimony is or is not given, and any other factors deemed relevant by the court; or
(b) When dealing with an individual that has a mental or functional limitation, the same factors are considered, including the age, functional capacity of the person, the type of case for which she/he will provide testimony, the trauma that may result from providing or not providing testimony and another factors the court deems necessary for review.
When asking the court to take the testimony of a child or individual that is mentally handicapped, the party making the request should factor these provisions into the decision. It is important to provide sound testimony to the court and if it is believed that a child has reached a conclusion under duress by another party, then the testimony will not hold much weight and the experience may be detrimental to the welfare of the child.
Not all cases involving custody disputes should have the child testify. However, sometimes it is vital for the child to feel as if she/he had a voice in the proceedings that impact his/her life and well-being. In many divorce cases involving teenagers the children feel that their voice should be heard equal to that of their parents. Ultimately that decision is up to the court, but the request should be made if the facts warrant such testimony.
As a family law attorney, I try to keep children out of the court proceedings unless it is vital to the case or the child has a true interest in being part of the proceedings. It is a delicate balance, but one that must be weighed by the parties, the attorneys and the court. Ultimately, I think the best form of such testimony and the least path of resistance is to have the child testify outside the presence of either parent so that the child does not feel as if she/ he is choosing sides or will be punished later for expressing an opinions and/or facts.