If you are facing divorce and a child custody dispute, you may be wondering if your children will be able to testify in the custody proceeding. While Florida courts value hearing a child’s wishes, they also believe that the child should be mature enough to fully comprehend what he or she is testifying to and the resulting consequences. Of course, this is difficult for children under a certain age. Most courts believe reliable testimony regarding custody matters should not be elicited from children younger than 13 years of age. However, it should be noted that the courts have discretion in deciding whether or not to hear a child’s testimony.
Pursuant to Florida Statute 92.55, the use of children witnesses that are younger than 16 years of age, that suffer a mental handicap, or have special needs is only allowed if a motion is submitted to the court requesting permission for the child to testify. In most cases, the child’s testimony will be given “in camera,” which means the judge will hear the child’s testimony outside the presence of either parent or their attorneys.
To determine whether a child should provide testimony to the court, Florida Statute 92.55(2) provides the following should be considered:
(a) The age of the child, the nature of the offense or act, the relationship of the child to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the child as a consequence of the defendant’s presence, and any other facts that the court deems relevant;
(b) The age of the person who has an intellectual disability, the functional capacity of such person, the nature of the offenses or act, the relationship of the person to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the person as a consequence of the defendant’s presence, and any other fact that the court deems relevant
It is important to understand that it is not always wise to have your child testify. However, your child may want to feel that he or she is allowed to have a voice in the proceedings that impact his or her future. This desire must be weighed against the risk that the child may feel uncomfortable picking sides. Thus, it can be a difficult decision that is ulitmately left to the court to make.
Typically, we believe it is better to keep the children out of the divorce and child custody proceedings unless it is critical to the case or of upmost importance to your child. If you need assistance in deciding whether your child should testify in your family court proceedings, contact us for an initial consultation.