Written by attorney Andrew Thomas Windle

Can my Child Testify in my Divorce?

When I tell people that I am a family law attorney, I usually get the same reaction, "I bet you hear a lot of crazy stuff." In reality, the vast majority of what I hear from my client's far from crazy, with one exception. I routinely hear crazy misconceptions about family law. Of those many misconceptions some are not concerning because they are crazy, but rather because it is crazy how many people have the same misunderstanding. Far and away the most misunderstood concept in family law relates to when a child will be allowed to testify in a custody proceeding.

Most parents think that there is a magic age when there son Johnny will be able to testify against the other parent. An equally large number of people think that when little Johnny reaches the age of 15 he will simply be able to choose between his parents and the custody decision will be left to him.

In reality custody decisions are never made solely by a minor child. Nor is a child allowed to testify merely by virtue of their age. Florida actually has a specific rule for family law cases that prohibits children from attending or acting as a witness at a Court hearing without the Court having previously entered an Order permitting the child to attend (a limited exception is made for emergency situations).

Naturally, that begs the question, how do you get such an Order? The answer is that you don't unless you have a very unique and good reason. For the most part, people who ask to allow a child to testify simply want the Judge to know the truth and to act accordingly. In fact, that is what I strive for in representation of my clients. However, the Court also has good intentions in its frequent decisions not to allow children to testify. The Court never loses focus of the best interest of the child. Allowing a child to testify puts the child in a no-win situation. With every statement they make they risk hurting their relationship with one of their parents, their parents trust in them is put in jeopardy, and they are forced to make a decision so difficult that their own parents were able to agree upon it. That is a tall order for a child.

As a child of a divorce, and as a divorce attorney, I understand both sides of that equation. However, there is a solution that avoids the trauma to the child, but accomplishes the important goals of the parent. The solution is to employee guardian ad litem or GAL, and be sure that the order of appointment permit the GAL to testify to hearsay (otherwise you will need to have a timesharing evaluation done to accomplish this goal). A GAL is sometimes referred to as next friend to the child because of their role as an advocate of the child's interest. In nearly all divorce and custody cases involving a GAL, the GAL will assess the child's preference (usually in a discrete and indirect manner) and place appropriate weight on that preference when submitted a recommendation to the Judge. If the child had other concerns or important pieces of information to share the child will be able to share that information through the GAL. This method of sharing information allows the child to be shielded from the litigation, but that crucial information is made available to the Judge to allow him or her to make the right decision.

If or a loved one is in a situation where they feel that the Judge needs to hear from the child to allow the Court to do justice, then you should contact an attorney for other options. There are ways to ensure that the child's message gets to the Court while sparing the trauma to the child, and foregoing the cost and time it takes to have a Judge tell you that they are highly unlikely to let your child testify.

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