Divorce Attorney Scott J. Stadler

    • 26 AUG 15

    Will My Children Have to Testify in My Divorce Case?

    microphone at court houseGoing through a divorce can be a stressful and emotional time in a person’s life. This can be even truer for any children involved, as they generally have little to no say in the process. That being said, there are times when questions arise in court and when children might have answers that need to be heard. These can range from the presence of domestic violence to a child’s wishes in a custody hearing. Needless to say, becoming further involved in the divorce process can be even more stressful for a child. Courts understand that children, especially younger children, may lack the maturity necessary to fully comprehend not only what his testimony means, but also what the consequences of that testimony might be.

    When Can a Child Testify?

    There are no restrictions of age regarding when a person may testify. As such, if a child is listed as a witness in a case, whether it is civil or criminal, then it is likely that the child will have to testify. This means that if a parent in a custody hearing lists a minor child as a witness, then that child will generally need to testify in court regarding the matter at hand.

    While there are no laws restricting witnesses based on age, there are certain regulations that deal with child testimony in both criminal and civil cases. In Florida, the law regarding child testimony can be found under Florida Statute section 92.55. Under section 92.55, certain protections may be provided to three types of individuals. These individuals include victims or witnesses under the age of 16, an individual with an intellectual disability, and a sexual offence victim or witness. Furthermore, under section 92.55 the court may take any necessary actions in order to protect the victim or witness in any official proceeding from severe emotional or mental harm due to the presence of the defendant if the witness or victim has to testify in court. Protections that a judge may award a victim or witness under section 92.55 include, but are not limited to:

    • Limiting the number of times a victim or witness can be interviewed
    • Prohibiting depositions of a victim or witness
    • Requiring submission of questions before the examination of a victim or witness
    • Setting the place and conditions for interviews of the victim or witness
    • Prohibiting or permitting the victim or witness or for conducting any other proceeding

    While these protections are important and go a long way to helping reduce the harm a child may suffer while testifying, there is no guarantee that the participation of a child will not result in some kind of emotional or mental harm. There are also times, such as in a custody hearing, where a child’s opinion or testimony can help that child feel like he or she has some impact on the outcome of the proceedings.

    Even though the protections found in section 92.55 can be significant, they are not automatic and may only be granted once a motion has been filed requesting protections for the testifying victim or witness. Such a motion can be made by a variety of persons under section 92.55, including:

    • Any party to a litigation
    • A parent of the victim or witness
    • A guardian of the victim or witness
    • An attorney of the victim or witness
    • A guardian ad litem for the victim or witness
    • The court

    Factors Warranting Protection

    Once a motion has been made with the court, the court must then decide whether the facts of the matter warrant such protections for the minor child. When ruling upon the motion, the court will consider several factors for each classification of witness or victim, including:

    • The age of the victim or witness
    • The relationship of the victim to the parties in the case or defendant in a criminal case
    • The degree of trauma that will result to the victim or witness that may be caused by the defendant’s presence
    • Any other factors the court deems relevant

    Different facts in a case may produce different results when the court is deciding to grant protections to victims or witnesses. While two couples involved in separate divorce proceedings may have somewhat similar facts, there could be enough differences for a judge to deny protections or produce less protections than the other case.

    Alternatives to Child Testimony

    While it is true that a child may need to testify in some cases, there are also alternatives to having the child testify in person that may spare the child from going through the trauma of testifying against a parent. One thing you can do is to contact a family law attorney to get more information regarding what your best course of action may be. Not only is each case unique, but the outcome of each case is dependent on specific facts, including the maturity and capabilities of the children and parties involved. An experienced attorney can help you find a way to provide the court with the whole picture, without having to unnecessarily put your child through the stress of testifying in court.