One topic that is sometimes brought up by my clients in a family law case, is whether a child should have to testify in court.
Typically, all parties try to avoid involving minor children in family law proceedings because of the potentially harmful psychological effects that it can have on children.
However, when the Court decides on issues relating to parental responsibility, one of the twenty factors that the Court takes into consideration is the preference of the child if the child is of “sufficient intelligence, understanding, and experience …” Florida Statutes § 61.13(3)(i). What that typically means is that if the child is near the age of 18 and there are issues pending related to the child, the Court will take into consideration that child’s preferences.
One way the Court may elicit the child’s preference is through an on-camera interview. An in-camera interview is conducted by the Judge outside of the presence of the parties and family law attorneys. If the parties wish, they may request that a court reporter be present during the on-camera interview but no one else may be present during this interview but the Judge, child, and court reporter (if requested). The goal of this interview is to allow the child to speak freely without fear of backlash from either parent.
Another way that the Court may elicit the child’s preference when the parents cannot agree on parental responsibility is by ordering a social investigation. The investigation is performed by court staff, a licensed child-placing agency, licensed psychologist, clinical social worker, marriage and family therapist, or mental health counselor. Following the social investigation, the report will be handed over to the Court and the parties. The report will include recommendations and a statement of facts upon which the recommendations are based. The extent to which the Court may consider the report is discretionary.
The evaluation of children involved in issues relating to parental responsibility is a difficult and often uncomfortable situation for all parties involved; especially the children. Parents should take comfort in knowing that Courts exercise the utmost discretion in deciding to involve children in proceedings revolving around parental responsibility.
About the Author
Ms. Feldman graduated cum laude from Florida State University in 2017, where she earned her Bachelor of Science Degree in Retail Merchandising & Product Development. She later attended the University of Florida Fredric G. Levin College of Law as a President’s Scholarship Recipient and received her Juris Doctor Degree in 2020. While in law school, Ms. Feldman served on the Executive Board of the Family Law Society, as well as worked as a Research Assistant for her Civil Procedure Professor where she researched Antitrust Law. Kally Feldman first became interested in Marital and Family Law matters while she was a member of the Alpha Chi Omega sorority at Florida State University, where she helped raise money for the Tallahassee Refuge House as well as awareness for Domestic Violence.