Posted by Nydia Streets of Streets Law in Florida child custody
Are children allowed to testify in a Florida family law case? If a judge deems it to be in the best interest of a child to be heard in court, the judge may allow the children to speak in chambers outside of the presence of the parents or other parties. However, certain parameters must be in place if the judge will rely on this testimony to make a decision in the case. Talarico v. Talarico, 3D20-0560 (Fla. 3d DCA April 22, 2020) goes over those parameters.
The parties entered a parenting plan in their original divorce proceeding which was later modified. In January of 2020, the mother who is a doctor, unilaterally cancelled a planned dental procedure for one of the parties’ children, citing a lack of compliance with essential pre-operative instructions. The father then filed an urgent motion to suspend the mother’s time-sharing and alleged alienation. At a hearing on the motion, the father requested that the court speak with the children in chambers. No other evidence was presented to the court other than the children’s statements made to the judge behind closed doors. Based on this, the court suspended the mother’s time-sharing and limited her visitation to twice a week dinners with the children. The court also suspended the father’s child support obligation. The court declined to state the content of the children’s interview but generally stated it was finding the mother exhibited inconsistent moods.
The mother appealed and the appellate court reversed on the basis that the court should not have conducted the interview without recording it or giving the parties a summary of the interview. Specifically, the court held “In the instant case, ‘[t]he record suggests that the judge relied primarily upon [the] in camera interview with the child[ren]’ in modifying custody. Under these circumstances, ‘[t]he divulging of information ascertained from the in camera interview . . . is required by due process principles.’[citations omitted] However, here, the interview went unrecorded and the court declined to provide an appraisal or summary of the children's testimony. [citations omitted] Consequently, because no other evidence was admitted, ‘[m]odifying custody under these circumstances [was] an abuse of discretion, especially considering that the modification order drastically altered and severely limited the [m]other's contact with the children.’”
Due process is an important part of a Florida family law case. To protect yours, schedule consultation with a Miami family law attorney.