Since the views of these judges have no basis in law or social science, I think we need to look elsewhere for an answer as to why this view is maintained. It has been suggested that such theories are popular because they relieve the judge of the burden of decision-making.6 For my part, I believe that judges act with good but misguided motives. I think judges have read books like this, based on Judith Wallerstein`s study of 131 children, in which she said, “For children and adolescents, separation and its consequences have been the most stressful time of their lives.” 7 Some judges try hard to reduce this stress. However, subsequent research on 8,000 children, conducted in 1985 by the National Institute of Mental Health, found that the emotional impact of divorce on children is no more lasting than other important events that occur during each of us` ascension into adulthood.8 Most children recover. In fact, some children are relieved by their parents` divorce and willing to move on immediately.9 The problem with judges acting on false assumptions such as “all children want to avoid the stress of choosing one parent over the other” is that it leads to the application of universal rules, and once those rules are in place, they are difficult to remove. If the court determines that a child is of a reasonable age and discretion, it must take into account the child`s life preferences, but the court has the discretion to give weight to the child`s statements and wishes. In other words, even if a child is allowed to testify, the court is not required to follow the child`s wishes. Ultimately, the court will make a decision based on all the evidence presented, including all of the children`s testimony, based on what it considers to be in the best interests of the child. Testifying in a marriage dissolution case is stressful, so we don`t let the parties testify.
Sounds weird? There are several factors that a judge must consider when deciding whether a child can testify about the parent they would prefer to live with. There is no fixed age at which the judge should or should not consider calling a child to testify. I have looked at the act. The law stipulates that the court must take into account the wishes of the children in matters of custody and access. F.S. §61.13(3)(i). How about a judge who says, “I never allow children to testify in family court because it is stressful for them.” In October 1997, I attended a family law seminar attended by a panel of six judges and master general. Two of the six proudly made exactly that statement.
Since most parents cannot afford to hire a psychologist as a witness and there are not enough guardians (let alone good ones), this judicial view means excluding the testimony of those who may be most affected by family court decisions. But this legal vision is developing. I argued that the child should not be called as a witness, especially since he had already been seen and questioned by several experts. I did not believe that the child would end up supporting the mother`s allegations, but the child`s father was seriously concerned about the implications of all of his little boy`s questions regarding these allegations. Personally, I do not believe that children should be called upon to testify against the other parent in family law matters. The court should always focus on the best interests of the child and not on how the child can help a parent “win” his or her case. Allowing a child to testify puts him or her in a dead-end situation. Any statement made by a child may harm his or her relationship with one of his or her parents.
And parents should protect their children from harm. Isn`t it dangerous for a parent to ask a child to testify in order to advance their own agenda? Isn`t divorce difficult enough for children without asking them to choose sides? If the court decides to allow a child to testify, it has options on how to record the child`s testimony. Unless the parties have agreed otherwise, the court requires the child to testify on the witness stand like any other witness, and the court allows lawyers to question the child directly and in cross-examination. However, if the parties agree, the court shall allow the child to testify in chambers with or without the presence of lawyers. And so it is with this new theory that “it is never in the best interests of children to testify in family matters.” Stupidity. This is another theory that creeps into cat`s paws and undermines the main purpose of our justice system. “While trauma reduction is an important social goal for underage witnesses, the primary purpose of a trial is to uncover the truth about a controversial event or transaction.” 28 However, this theory not only contradicts common sense (should school tests and dental appointments for children be cancelled because they cause stress?), but it also contradicts social science research. Someone has to stand up and say, “The judges, like the emperor, have no clothes.” Contact Kalinoski Law Offices today to get a lawyer to represent you and provide custody of the children. Florida does not provide an age limit beyond which children can be heard in family law cases. Instead, the relevant law allows their views to be taken into account if the child is “of sufficient age and maturity” without indicating an actual age. Whether they can testify when and how is largely at the discretion of the family judge.
In a custody case, the judge makes a decision based on what he or she considers to be the “best interests” of the minor child. In making this decision, the court will consider all relevant evidence, including both positive and negative elements concerning both parents. In addition, in certain circumstances, the court will even allow a child to testify. Divorce can hit children hardest. The younger they are, the less they can understand what is going on, and they have even less control over the situation than both parents. A child does not even have the right to testify, a judge decides if he can do so based on certain factors, similar to the procedure they use to determine custody of the children. Even if they give that child the opportunity to testify, they will usually not be in the courtroom. They will testify in the judge`s chambers, only with the parents` lawyers as witnesses. None of the parents can be in the room. At Department of Children and Family (DCF) hearings, children often testify in the courtroom. The dependency judge will often ask them questions directly with the bank. As with injunctions, children may be questioned by lawyers representing the Department of Children and Family Affairs, their own lawyers, as well as the parents` lawyers.
However, because these are children, addiction judges will not hesitate to rule on lawyers who ask inappropriate or combative questions. Lawyers know they have a “short leash” when they ask questions of children in court. Because the Florida family law rules have been amended to provide that a child may testify only if the court first decides that a child`s testimony is necessary and relevant to the issues, Florida Family Law Rule 12.407, I have attempted to have children testify in three different types of cases. In California, there is no minimum age for a child to testify in court. Instead, judges have the discretion to determine whether a child can testify. To determine whether a witness is capable of testifying, the judge must (1) consider whether the witness is capable of expressing himself or herself in such a way that he or she can be understood (directly or by interpretation); and (2) whether the witness understands his or her duty to tell the truth. Sometimes the law treats this second requirement as a child`s ability to differentiate between a truth and a lie. The law has established that some young children are capable of understanding the difference between truth and a lie, and children have been allowed to testify in reported cases where they have been victims of alleged sexual abuse. In divorce and paternity cases, minors are not allowed to testify in family court and are questioned directly or cross-examined. On the contrary, the child will speak privately with the judge in his or her chambers if necessary, while lawyers and parents will remain in the courtroom. However, litigants are entitled to due process to have this conversation transcribed by a court reporter. A divorce case in court can be difficult for any family member, especially children.
When is it appropriate for a child to testify in court? In Texas, however, there is no specific age at which a child can testify. Legal and practical considerations must be taken into account in deciding whether this is appropriate. The first legal test is for the judge to determine whether the child is “capable” to testify. This essentially means that the child must understand the difference between truth and a lie and understand the moral responsibility not to tell the truth. Under Rule 601(a) of the Texas Rules of Evidence regarding children on the witness stand, children “who appear to lack sufficient intelligence to relate the transactions they are being questioned” are considered incompetent.