Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Interviewing a child as a witness in a Florida child custody case can be stressful for the child. Therefore, these interviews must be handled with care and are usually only allowed in a court proceeding with the permission of the judge. Whether a child is allowed to testify or not depends on factors weighed by the court against prejudice to the party asking for the testimony. This was an issue in the case M.S. v. Dept. of Children and Families, 3D22-1108 (Fla. 3d DCA August 17, 2022).

The stepfather in this case was accused of sexually abusing his stepdaughter. As a result, the state sought to terminate his parental rights to his biological child. The stepdaughter repeated her allegations many times in different interviews and asserted both parents were aware of the abuse. At trial on the termination petition, the stepdaughter repeated her allegations but stated she lied when she said her parents were aware of the abuse. A motion to disqualify the trial judge was granted and a new judge granted a new trial at which the child’s prior testimony was admitted. Although given an opportunity to do so, the parties declined to recall the client as a witness. At the conclusion of the trial, the parents’ rights were terminated. Immediately thereafter, the stepdaughter emailed the judge recanting her allegations. The court vacated the final judgment and scheduled an evidentiary hearing to determine if there was “new and material evidence, which, if introduced at the hearing, would probably have changed the court’s decision and could not with reasonable diligence have been discovered before and produced at the hearing.” Fla. R. Juv. P. 8.265(a)(4). The stepfather sought to depose the stepdaughter in advance of the hearing, and the court granted protective orders filed on her behalf. The stepfather then sought certiorari relief from the appellate court.

The appellate court noted “The denial of discovery seldom warrants certiorari relief because, typically, any resulting harm is capable of remedy on plenary appeal. [. . .] There is a well-settled exception to this general rule. When the pretrial deposition of a material witness is denied absent a finding of good cause, this court and others have granted certiorari review. [. . .] The rationale for this exception is simple. Ordinarily, the harm associated with the denial of an essential deposition cannot be corrected on appeal since ‘there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.’”

In denying the stepfather’s petition for relief, the appellate court held “In the instant case, the child witness is under the age of eighteen and a purported victim of sexual abuse. Further, the judge duly considered additional rule-based factors before ultimately concluding good cause justified granting the protective order. The challenged order contained express findings that the child is fourteen years of age, the allegations concern sexual abuse, the alleged perpetrator is in a familial relationship with the child, the child has been interviewed on multiple occasions, and the child will potentially suffer adverse effects if interviewed outside of court. These findings comport with the applicable legislative considerations. Petitioner contends, however, that no expert has directly opined the deposition should not proceed due to anticipated prospective harm to the child. While this is technically correct, expert testimony of record established the child suffers from post-traumatic stress disorder, depression, and an adjustment disorder. Thus, the adverse effect finding is not untethered to any evidence. Petitioner further asserts that, because the newly discovered statement is a recantation, the trial court improperly relied upon previous interviews in determining good cause. By the time the child testified at the first trial, she had retracted several of her prior statements and admitted to lying. The successor judge extended an unclaimed opportunity to petitioner and all other parties to recall the child as a witness. In view of this chronology, the existence of the prior interviews cannot be deemed wholly irrelevant.”

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