When Can a Child’s Statements be Considered by a Florida Judge?

An issue that results in a number of appeals involve when it is or is not appropriate for a judge to consider the testimony (or statements) of a child in the process of making a custody determination. 

Pursuant to the Florida Family Laws Rules of Procedure, no minor child should be deposed or brought to a deposition, brought to court to appear as a witness to attend a hearing, or be subpoenaed to appear at a hearing without a prior order of the court based on good cause shown unless there is an emergency situation.  In other words, a judge typically has to approve, in advance, of when a child is going to be giving testimony in a family law case.

If a child is going to testify, it will typically be “in chambers”, which means the child will testify only in front of the judge without the attorneys present.  When this happens, however, either parent has a right to have the child’s testimony in front of the judge transcribed by a court reporter.  However, if neither party requests a court reporter to be present, a court reporter is not required.

When it comes to a child’s hearsay statements, said statements typically should not be admitted as evidence unless the statement satisfies a two-prong test indicating (1) that the source of the information through which the statement was reported is trustworthy and (2) the time, content and circumstances of the statement reflect that the statement provides sufficient safeguards of reliability.  Further, such hearsay statements typically are admissible only if the child testifies or is judicially found unavailable as a witness, which is a fairly complex analysis.

The bottom line is there are numerous technical rules that apply to the testimony of children and a Florida judge’s consideration of hearsay statements made by children.  When a trial judge bases a child custody decision on a child’s testimony or child hearsay, it is a good idea to have a qualified attorney review the record from the trial to make sure the appropriate rules were followed.

Florida Family Laws Rules of Procedure, no minor child should be deposed or brought to a deposition, brought to court to appear as a witness to attend a hearing, or be subpoenaed to appear at a hearing without a prior order of the court based on good cause shown unless there is an emergency situation.  In other words, a judge typically has to approve, in advance, of when a child is going to be giving testimony in a family law case.

If a child is going to testify, it will typically be “in chambers”, which means the child will testify only in front of the judge without the attorneys present.  When this happens, however, either parent has a right to have the child’s testimony in front of the judge transcribed by a court reporter.  However, if neither party requests a court reporter to be present, a court reporter is not required.

When it comes to a child’s hearsay statements, said statements typically should not be admitted as evidence unless the statement satisfies a two-prong test indicating (1) that the source of the information through which the statement was reported is trustworthy and (2) the time, content and circumstances of the statement reflect that the statement provides sufficient safeguards of reliability.  Further, such hearsay statements typically are admissible only if the child testifies or is judicially found unavailable as a witness, which is a fairly complex analysis.

The bottom line is there are numerous technical rules that apply to the testimony of children and a Florida judge’s consideration of hearsay statements made by children.  When a trial judge bases a child custody decision on a child’s testimony or child hearsay, it is a good idea to have a qualified attorney review the record from the trial to make sure the appropriate rules were followed.

Did this answer your question?

Back to Appealing A Florida Child Custody Decision

Call (561) 810-0170 or click here for more information about scheduling a consultation and strategy session with the Florida Divorce & Appellate lawyers of Bruce Law Firm, P.A..  The firm’s practice is limited to divorce and family law and represents clients in all of Florida’s appellate courts under fixed-fee pricing arrangements with a money back guarantee.  The firm shares fees with referring attorneys pursuant to Florida Bar rules.  All information on this website is subject to this Legal Disclaimer.  Click West Palm Beach Divorce Lawyer for the firm’s other divorce and family law website.