Do Children Testify During a Divorce?

A divorce between two people without children is hard enough. However, it’s sometimes unavoidable that couples with children seek a divorce, too. In these situations, the whole family experiences the divorce process and its effects. In sadder circumstances, the children can become another asset to fight over. It can be easy to seek ways to hurt your ex’s feelings during this emotional time, but you must think of your children. How you act during the divorce will have long-lasting effects on the divorce and your children.

Children who experience a divorce during their formative years will remember a lot of it. Beyond that, your children are individuals. They’re going to have thoughts and complex feelings about the divorce. What happens if your partner brings up your child’s feelings in court? Will your child have to testify?

Children, Family Law, and Court Proceedings

Generally speaking, children are not allowed to be a part of the divorce proceedings, and therefore having children testify is rare. According to the Florida Family Law Rules of Civil Procedure… ” 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 Family Law Rules of Civil Procedure 12.407(a)

The reason is to avoid undue stress on the children and the family dynamic. As we mentioned, some grieving parents try to use their children as tools in a divorce. Florida Family Law Rules of Civil Procedure goes on to say that the rule is there to protect children. Because due process can’t ban children from testifying, the state added a rule.

In most cases, except when deemed necessary by the judge, your child cannot even be present in court. The exception is educational purposes where the children present are not related to the couple.

In Florida, the most important thing is the consideration of a child’s best interests. There are entire sets of rules to distinguish family law from civil or criminal law. We’re lucky that Florida law works this way. With family law, we must consider that the lives of two parties may have long-term involvement. It’s hard to provide short testimony in court without affecting the family dynamic. This is especially true with situations involving children.

Can the Court Restrict a Child’s Testimony?

Yes. In the rare event where having children testify is not a necessity, courts will protect children with mental disabilities or those in situations where testifying may harm the child. This often means giving private testimony rather than making an in-court appearance. This takes place in front of a camera and can be effective when covering visitation. Children will often try to remain neutral and not hurt their parent’s feelings. For example, they may tell both parents that they want to live with them. Children also tend to admit how they feel in private situations, though.

Evaluators and social workers may also get involved in determining the child’s best interest with regard to testimony. After all, that is what this is about: Your child’s best interest. You should insulate your children from the process of divorce as much as you can. Healing and emotions should not take place during the legal process. After finalizing the divorce, your family can begin to heal. If you have any questions about how to protect your children in a divorce best, don’t hesitate to give us a call for a consultation.