Clients often ask me how old a child has to be in order to testify in Florida. Generally speaking, I am dealing with family law cases. Parents have a difficult decision to make in even requesting that their children testify. Judges have the even more difficult decision of whether or not to allow it. In addition to the statutory factors listed below, a number of factors go into my argument (either for or against, whatever the case may be), including the information sought from the child (could that same information be obtained elsewhere), the relationship between the child and the parents (if there is alienation involved, it typically doesn’t make any sense to have a child testify, as one already knows what the child will say: “I love my mom/dad” versus “I hate my mom/dad”), the type of testimony (in cases of sexual or domestic violence, children’s interests become that much more important).
Florida Family Law Rule 12.407 provides: “No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.”
Florida Statute 61.13(3)(i) also provides a factor for the Court to consider in determining a parenting plan for minor children. It provides, in part: “Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to… The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”
In Monteiro v. Monteiro, 55 So.3d 686 (3rd DCA 2011), the trial Court evaluated whether or not the children would be permitted to testify in camera (with the judge present without parties or witnesses) over the husband’s objection. There, the Court held: “In addition, the father’s request in this case for submission of the minor children to examination in the presence of counsel and/or parties, effectively superimposes his right to due process upon the best interests of the children. This is impermissible. The father’s request is particularly at odds with the truth-finding process where, as here, he is the subject of the minor children’s testimony. Thus, the only way to obtain the truth from the minor children is to conduct the interview outside the presence of the father. Clearly, the Florida Legislature has recognized that in situations such as the one before us today, the best interests of the minor children are paramount. As such, we find that the trial court’s decision was not a departure from the essential requirements of law. On remand, the father can request that a court reporter be present so that the children’s testimony is transcribed, thus permitting judicial review.”
Court have wide discretion in considering a party’s request for children to testify in a dissolution or time-sharing matter. As appellate courts have noted, the best interests of the minor children are paramount.