Child Testimony in High Conflict Divorce Cases

Sad littl girl. Child's problems
Sad littl girl. Child's problems

IN ALL FLORIDA court proceedings involving children, the courts have a legal obligation to make decisions regarding the children based on the “best interests of the child.” This is a legal standard established by the Florida legislature and case law.

Florida Statute 61.13 addresses the factors the court may take into consideration when determining the best interest of the child (or children), including but not limited to:

 (a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

Divorce proceedings can be very emotional and trying for families, particularly when the parents are locked into extremely adversarial positions. Children can easily get caught in the middle as they struggle with their love and loyalty to both parties. As a general rule, parents are discouraged from thrusting their child into the middle of their divorce case.

In cases where one parent wants the child to testify in court against the other parent, children may be especially vulnerable. Thus, Florida law attempts to provide extra protection for children under 16 years of age, particularly if the child has been a witness or victim of abuse in the home.

This could include, among other protections, allowing the child to provide testimony in camera (which simply means in the judge’s chambers, not in open court) or, depending on the age and/or vulnerability of the child, the use of a Guardian Ad Litem (GAL). A GAL an officer of the court brought in to interview the child and review the circumstances of the case so he or she may then give testimony on the child’s behalf.

If you anticipate your divorce proceeding will be one of high conflict, with a need to include testimony from one or more of your children, or you anticipate the other parent may wish to call your child to testify, please call Ambrose Family Law today to schedule an appointment. We would welcome the opportunity to discuss the particulars of your case to see how we may be of help.