Child testimony.

• Author: Slicker, William D.
• Position: Florida family law

Testifying in a dissolution of marriage case is stressful, so let's not allow the parties to testify." Sound bizarre?

How about, "We know that appearing in court causes stress to attorneys so we are going to have the attorneys appear via social workers who will present the attorneys' arguments for them." Sound absurd?

Then how about a judge saying, "I never allow children to testify in family court because it is stressful for them." I attended a family law seminar in October 1997 at which a panel of six judges and general masters appeared. Two of the six proudly made this very statement. In light of the fact that most parents cannot afford to hire a psychologist to testify and that there are not enough guardians ad litem to go around (and even fewer good ones), this judicial view means the exclusion of the testimony of those who may be most affected by the family court decisions. Yet this judicial view is growing.

Since Florida's Family Law Rules were amended to provide that a child is not to testify unless the court first determines that a child's testimony is necessary and relevant to the issues, Florida Family Law Rule 12.407, I have sought to have children testify in three different types of cases.

The first case was a change of custody case. A 10-year-old girl, who was in the legal custody of her father but seeking refuge with her mother, wanted to testify that her father was smoking crack cocaine and that there was rarely anything in the refrigerator to eat. The judge denied my motion to allow the child to testify without even holding a hearing on the motion. All of the girl's testimony became inadmissible hearsay. The girl was fearful of going back to her father. Fortunately, my client and I found some police officers who testified that the father was known as a crack user and the father tested positive for cocaine on a drug test.

The second case was a change in visitation case. A 16-year-old girl, who was living with her mother, wanted to testify that there were problems at her father's house in which she did not want to be involved, and, therefore, she did not want to visit him as frequently. A psychologist was willing to testify that this girl was emotionally mature and it was important that the teenager be allowed to be heard. The judge denied my motion to allow the child to testify without even holding a hearing on the motion. All of the teenager's testimony became inadmissible hearsay. The teenager was angry at the court for not letting her be heard. She is not unusual. Exclusion from the decisionmaking process typically makes children angry.[1] Such anger causes the child more stress than if he or she had testified in court.

The third case was a domestic violence case. A man who had been physically disabled in the Vietnam War obtained a temporary injunction by accusing his wife of not feeding him enough and of hitting him. The 14-year-old and 10year-old sons who were living with the parties wanted to testify at the injunction extension hearing that their father ate what he wanted at meals and the rest of the family then ate what was left, and that they had never seen their mother hit their father. The judge denied my motion to allow the children to testify without even holding a hearing on the motion. The boys' testimony became inadmissible hearsay. The injunction was extended. Later, it was overturned as having been falsely obtained.

What do all three cases have in common? The judge in each case, like the judges at the seminar, has publicly stated that it is never in...