Defending the "child as witness" rule.

• Author: Marks, Deborah
• Position: Florida

Many years ago, the Family Law Section Rules Committee, a fairly large group of family lawyers, met each Saturday at the office of attorney Jeffrey Wasserman (the current treasurer of the Family Law Section) to discuss, debate, and draft a suggested set of what we believed Family Law Rules should look like if the Supreme Court were to permit rules to be adopted. We discussed what made family law cases unique to require rules different from other civil cases; what we saw in the practice that should be more regulated; and how we would solve the problems we saw. We drafted a full set of rules, and, when the Florida Supreme Court adopted its first rules opinion and when The Florida Bar appointed its first Family Law Rules Committee, that set of proposed rules was presented to the newly formed group.

One of the focus areas for both rules committees was the need we perceived as practitioners to recognize that when a divorce is going to take place it is necessary to keep all of the interested parties, and in particular the children who have no control over the fact that their world is shattering, from being further harmed by the system. We saw, at that time, an increase in "pre-litigation" planning which included taking children to multiple psychologists for testing until a parent had the result he or she wanted; taking children into the confidence of one party or the other to build a case; and an increase in parental alienation. We reported to each other, anecdotally but fairly consistently, that parents were bringing children to meet with us to tell various things that would be "helpful" to our cases and that the parents wanted the kids to testify to these events and to their desires as to parenting in court. As the stakes went up, the children were being put in the middle, forced to choose between parents, and--even worse--told not to tell the other parent about evaluations, appointments with lawyers, etc., thus damaging the communications lines for the other relationship.

With this backdrop, two proposed rules were born, both of which are now adopted. Both were designed to keep the potential for child involvement as an absolute necessity, and to build in disincentives for manipulation of the children and for putting additional burdens on them. One of those rules is Rule 12.363, dealing with the evaluation of minor children by experts, which was designed to discourage multiple testing of children and testing without communications with the...