Child Testimony & Child Preference Family Law Attorneys
For those pursuing a divorce in Florida with children, the process of determining child custody is often an emotionally taxing and stressful process, even for the most capable of parents. In many cases involving parents divorcing or separating, parents reach an agreement without requiring a judge to decide which parent should regularly care for the children on a day-to-day basis. Depending on the maturity of a child, child custody evaluations, and a number of additional factors unique to each case, however, a judge may likewise consider a child’s wishes when determining custody and visitation arrangements.
To ensure beneficial resolutions to child custody cases, it’s critical that parents, custodians, and guardians seek legal counsel they can count on. The team of Sarasota family law attorneys at Tobaygo Law comprises a passionate team of experienced child custody lawyers delivering professional legal counsel and representation to clients throughout Sarasota and Manatee Counties. We are fully committed to helping you protect your parental rights and ensuring your child’s best interest. Contact us today to learn more about how a child’s preference can impact custody decisions in Florida and to request a free case consultation.
Child Custody In Florida
In cases where separating parents are unable to agree on the allocation of parental responsibilities and visitation schedules, the case may go to trial, during which the presiding judge will make the decision for them. After considering a number of different factors specific to the case, including child preference (if they are of sufficient age, intelligence, and comprehension), the court will develop a parenting plan, which includes time-sharing schedules, and assign parental responsibility based on the child’s best interests. Hiring a family law attorney with a wealth of experience and knowledge in matters regarding child custody is imperative for separating parents as well as their children — contact us to protect your rights.
Time sharing, also commonly referred to as parenting time, refers to the amount of time each parent is legally allowed to spend with their child. In the State of Florida, a judge determines time sharing child custody schedules. In cases involving child custody and visitation, parents or guardians may have roughly equal parenting time (joint custody) or, in cases in which a parent or guardian is deemed unfit by the courts, one parent may be awarded all of the time (sole custody). In cases where parents reside far apart, such as in different counties or cities, equal time sharing can be impractical and may negatively affect the child.
As such, a judge can aware one parent far more time with the child (majority time sharing) than the other. Under Florida Statute § 61.125 (2020), a parent can their lose time sharing rights if there is evidence of child abuse (including simple child abuse and aggravated child abuse) or neglect. Even in cases in which parents are awarded joint custody, a judge may designate one parent as the custodial parent and the other as the noncustodial parent.
Parental responsibility refers to the authority of a parent to make decisions on behalf of their child. A parent granted legal custody is often able to make major decisions involving their child’s welfare, education, and health, without requiring involvement or permission from the other parent. Florida judges often prefer to grant both parents legal custody over a child, which offers each parent an equal say in their child’s upbringing. In cases where parents are able to agree on these matters, the custodial parent typically has final decision-making power with regard to matters involving their child.
A Child’s Best Interest In Florida
Decisions of the court regarding time sharing, parental responsibility, and child custody are based on the child’s best interests. The primary goal of any custody case is to determine the parenting framework that best accommodates the child’s needs. As such, a judge will consider a number of factors, including the following, prior to awarding custody to one or more parents.
- Each parent’s willingness to cultivate a relationship between the child and other parent
- Each parent’s ability to meet the child’s needs
- Each parent’s moral fitness
- Each parent’s physical health and mental health
- Each parent’s ability to provide the child with a healthy, consistent routine
- Geographic viability of the parenting plan
- The child’s ties to their home, school, and community
- The child’s preference, if of sufficient age, intelligence, and understanding
- Any evidence of domestic violence, abuse, or negligence
- Each parent’s ability to provide a safe and stable environment for the child
- The child’s developmental abilities, needs, and age
- Any other factor deemed relevant by the court, as per Florida Statute § 61.13 (2019)
Florida is among a number of states in which custody laws require a judge to evaluate each parent’s moral fitness in a custody proceeding. Moral fitness is qualities based on circumstances that may impact the moral and ethical development of a child, such as a history of substance abuse, illegal behaviors, or frequent casual relationships with multiple partners. In cases where one parent has an extramarital relationship, the relationship will only be considered if the behavior produced a substantial, negative impact on the child.
Child’s Opinion In Florida Custody Decisions
In Florida, the overall maturity of a child (as deemed by the courts) is considered when deciding if the child can choose which parent they want to live with. In other states throughout the nation, there is a particular age at which a child may choose to live with either parent, but Florida laws don’t specify a particular age at which a child’s preference is considered. In determining the viability of child preference, the judge must determine that:
- The child has adequate intelligence to make a decision;
- The child understands (in full) the decision they are marking; and
- The child has enough experience with each parent to make a meaningful decision.
While a judge can consider a child’s stated preference with regard to which of their parent’s receives custody, the courts do not have to base their decision solely on the opinion of the child. Instead, the judge simply may take a child’s preference under consideration, in addition to all other pertinent factors regarding custody. In cases involving multiple children, a judge may make independent decisions for each child, especially in situations involving children too young or without the capacity to make informed, intelligent decisions about parental custody.
When Can Children Testify In Court?
In the State of Florida, neither attorneys nor parents can force a child to testify in a court of law. Although a child’s preferences and opinions are considered in custody decisions, Florida law puts in place protections so as to protect minor children from getting involved in family law litigation. The Florida Court Rules of Procedure state that minor children are not permitted to be deposed, brought to a deposition, brought to court as a witness or attend a hearing, or be subpoenaed to appear at the hearing.
However, there are certain circumstances under which a court will allow a child to testify, such as cases in which the child’s testimony is absolutely necessary or the matter is an emergency. A judge may appoint a licensed mental health professional or another expert to interview the child, and request that the professional or expert later testify in court of the child’s preferences and requirements. In other cases, the child may speak either with a guardian ad litem — a person appointed by the court to represent the best interests of the child — or a child custody evaluator, who will later testify in court on the child’s behalf.
If a parent believes their child’s testimony is vital to their case, they may motion the court, after which the judge will consider the facts of the case and determine whether the child’s testimony contains information vital to the legal issues at hand. The judge will take into consideration the age of the child, the nature of the court action, the child’s relationship to both parties, and any possibility that the experience will be traumatic for the child. Judges are typically granted broad discretion in their assessments of relevance regarding a child’s testimony, although many judges err on the side of caution, restricting use of a child’s testimony in court. For more information or to discuss your case, contact Tobaygo Law today.