Can a Child Testify in a Custody Hearing

Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa and Orlando to Miami.

In this edition, our roundtable will discuss probably the most difficult subject in family law: how to handle child custody issues in court. Out attorneys know that when it comes to the pain and often times loneliness of divorce compassion and a determined legal advocate is needed to weather one of life’s most difficult storms. But when it comes to children going through a divorce, that determination our attorneys offer in getting the best possible outcome for you must be coupled with weighing the lifelong impact divorce can have.

Here is a roundtable discussion from three of our legal minds regarding one of the key questions mothers and fathers face during divorce proceedings: Can/should a child testify about his or her custody preference?

Check out three takes on that question from Tampa-based Ayo & Iken partner Alberto Ayo, Attorney Jennifer Schulte, and Tampa-based Attorney Jeana Vogel:

Family law courts in Florida take great care in preventing children of a tender age from having to testify. However, sometimes it is a necessity as the evidence in some cases dictates such, but it is generally left to the judge’s discretion to allow testimony from a child.

Our role as advocates is never to discount the humanistic side of what we do which is to protect the best interest of a child. So if at all possible, a child of tender years should almost always be excluded from court proceedings due to the possible permanent effect it can have on a growing mind.

I very rarely recommend it. I just don’t think kids should be involved in their parents’ divorce. Sometimes it becomes necessary if there is domestic violence and the child may be the only witness. And usually if it does come to a child testifying usually they are 16-years-old or older. But normally if their opinion is one factor out of 26 factors they are very rarely called to testify, you just can’t do it.

As a rule of thumb I always discourage having children under 17 from testifying unless for instance there is a domestic violence injunction hearing and there is such a lack of evidence that only the child’s eyewitness testimony is all there is. You also always have to weigh the age of the child and the facts of the case. But child testimony really is a last resort. I really prefer using and guardian ad litem or undergo a social investigation to obtain an objective determination.

Some situations in court, however, do result in children testifying and it can go many different ways, so preparation and strong legal representation is always important.

It is almost always the case that judges will do everything they can to prevent children from testifying. But situations where children testify in court do arise and they can be very difficult. Two of my cases jump to mind. There was a domestic violence incident in one case where a child was so punched by his father. It left marks on him. The child and his mother told the police what was going on and mom filed domestic violence injunction. But no one else saw the incident so the child who was only 12-years-old had to testify. The judge let the dad and mom stay at a table with the child sitting in between. I thought it was really traumatic for the child and the judge did not make the right call on that one.

In another case, a 17-year-old girl didn’t want to go see her dad after her parents divorced. The handling that very differently by having the parents step out of the room and making the attorneys stand in the back of courtroom where they could heard what was being said but were remote from the conversation the judge wanted to have with the girl. The judge even took his robe off and just sat at table in order to lessen any possible intimidation the witness might have felt. I thought it was an excellent way to handle things.

So even though most judges with not listen to testimony of children it happens and there you have two examples of how it can. In the end, some parents want to have adult conversations with very young children when they are in a divorce and I think it’s inappropriate. You shouldn’t have custody conversations with your child at that stage because it can influence what they may end up saying in court. And children can often be playing both parents in order to get what they want, and what they want may not be in their best interest. And I always like to remind my clients that whatever they tell their children during a divorce can never be taken back.

The courts really do not like to talk to children until the age of 12 and I never think it’s a good idea for a child to testify unless it’s a case such as an adoption because in these family law matters how a mother and father behave has a long lasting mental impact on a child. So anytime I can avoid a child testifying I try to. I really prefer a social investigations or a guardian ad litem’s involvement. These types of other resources are valuable in dealing with children.

Sometimes it cannot be avoided for instance in dependency cases, so it’s important to have strong legal representation because unfortunately a child’s testimony may be the only way to get evidence in a case where their well-being is at stake. I have seen children as young as four testifying and that’s really heartbreaking.

And if a judge says that a child’s testimony is necessary, which is rare, preparing the child for the procedure while not talking about the subject of their testimony is very important. The biggest thing is to not to talk about the subject. Obviously, you can talk to them about the judge’s role: that he is nice, that he or she is on your side, that he or she just wants to make sure you are ok. Those kind of things. It’s also important to stress that it’s really important that you tell the truth.

I can’t stress enough that parents should not coach their children about what they should say to a judge, though. Judges can tell right away by the words children use that they have been coached. If they use more advanced language because they have been versed by their attorney or parent, it can ruin a case. The judge is going to frown on that. A parent should simply emphasize honesty and that whatever their child says it’s not going to hurt the parent’s feelings. That extra reassurance is reaffirming and important.

It’s unusual. If you want to even bring a child to court you can’t even bring a child into the courthouse without a court order. If you think about the trauma a young child is going through, kids need to be kids, not worrying about being involved in a divorce. It’s bad enough on the kids and now you are going to put them in the middle of the fight. I don’t think so. The only circumstance I can think of is if say you are married and your wife beats your kids and you get a domestic violence injunction. You weren’t there and you didn’t see it and a fact witness is needed otherwise you lose your domestic violence injunction.

If a child is old enough, like 15, 16, or 17, it could be considered but otherwise absolutely not. It also really depends on the maturity of the child but I really discourage it. And if it happens, I think it should be in-camera with the judge being the only person present when it happens.

Sorry but I feel driven to throw my two cents in. First of all: don’t count on it. The entire family law system is oriented to keep children out of the proceedings. If you absolutely have your heart set on it then “know your judge” and be prepared to spend money. In rare circumstances some judges will want to talk to children. The other alternative is to have a guardian ad litem. That person can be costly and our discussion on that issue is best left to another day.

That wraps up today’s roundtable discussion. Be sure to look around our website for more in-depth articles on child testimony. Meanwhile we hope to see you come back to the Ayo and Iken roundtable.