Generally, children will not be called to testify as to matters in a family law case. Many parents have difficulty understanding why their child will not be called on to express their wishes, concerns, or input regarding the situation that greatly affects their lives. Florida Family Law Rule 12.407 precludes testimony from a child as a witness in custody related cases without a prior order made by the Court. To obtain an order allowing for the testimony of a child to be considered the parent requesting the testimony must file a Motion for Child Testimony with the court. The court will give consideration to the motion at a hearing in which the judge will determine the appropriateness of the child’s testimony in this case by weighing a variety of considerations. The judge will focus on the child’s maturity, ability to convey their desires, the age of the child, and the ability to make a decision without the child testimony.
While these considerations may seem like common sense, many people have difficulty understanding why children are not always allowed to be present at hearings that are determinative of their future. Parents in the midst of litigation tend to get caught up in the idea of winning the litigation and furthering those interests. It may be a misguided notion that presenting the child’s testimony for consideration by the judge would be in the best interest of the party or the child. Children at times often express their desires to assist their parents in the litigation process and then the idea of the child testifying reaches the attorney for consideration. It is very important that an attorney fully evaluates the facts surrounding their client’s case and educate their client regarding this request. There are various ways in which a child’s desires can be heard or taken into consideration by the court.
Parents who desire to have their child testify in their family law case will need to file the appropriate motion and having a hearing on the matter. If a parent believes that their child may not have the appropriate maturity to take on such a task, or if they desire to have their children’s wishes expressed in a less direct manner, the more appropriate motion may be a motion for the court to appoint a guardian ad litem. A guardian ad litem is a court appointed party who is utilized as the voice of the child to the court. The guardian ad litem acts as a messenger to the court of the child’s wishes, school progress, concerns of guardians or teachers, etc. The guardian ad litem is a respected avenue used by parties to have the child’s wishes expressed to the court, while allowing the child to remain shielded from the ups and down of continuous litigation.