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Legal Lesson: Rule 12.407 Testimony of Minor Children

FLORIDA HAS ADOPTED SPECIFIC RULES THAT GOVERN THE TESTIMONY AND APPEARANCE OF MINORS FOR DEPOSITIONS AND HEARINGS IN FAMILY LAW CASES. A PARTY WHO WISHES TO PRESENT THE TESTIMONY OF A MINOR CHILD MUST FIRST OBTAIN A COURT ORDER PERMITTING THE TESTIMONY, BASED ON A SHOWING OF GOOD CAUSE. EXCEPT IN EMERGENCIES, A MINOR CHILD MAY NOT ATTEND A HEARING, BE SUBPOENAED TO APPEAR AT A HEARING, OR TESTIFY, ABSENT A PRIOR ORDER OF THE COURT.THE RULE IS INTENDED TO AFFORD ADDITIONAL PROTECTION TO MINOR CHILDREN BY AVOIDING ANY UNNECESSARY INVOLVEMENT OF CHILDREN IN FAMILY LAW LITIGATION. WHILE DUE PROCESS CONSIDERATIONS PROHIBIT AN ABSOLUTE BAN ON CHILD TESTIMONY, THE RULE REQUIRES THAT A JUDGE DETERMINE WHETHER A CHILD'S TESTIMONY IS NECESSARY AND RELEVANT TO ISSUES BEFORE THE COURT PRIOR TO A CHILD BEING REQUIRED TO TESTIFY.


Relevant Rule: Florida Family Law Rule of Procedure 12.407


Testimony and Attendance of Minor Child

No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.

Procedure:

Generally, the party seeking the minor child’s testimony, drafts a motion stating the reasons why the child should be heard. Then a hearing is scheduled to determine whether good cause exists to allow the child’s testimony.

If the motion is granted, the judge can allow the child to testify in the hearing, subject to cross examination, or can speak to the child alone in chambers without court reporters or counsel.

If permitted to testify, the court must treat children under the age of 14 with special care. § 90.612, Fla. Stat. (2011). Specifically, the court is to ensure that questions that are in a form that can reasonably be understood by a person of the age and understanding of the witness, and shall take special care to restrict the unnecessary repetition of questions. Id.

Case law is not specific regarding the factors a judge should consider in determining whether a child may testify. In fact the lack of case law all together on this issue seems to indicate the judge has broad discretion in determining what is “good cause” top allow a child to testify.

LEXSTAT FLA FAM LAW R PRO 12.407

LexisNexis Florida Rules of Court Annotated

Copyright 2011 by Matthew Bender & Company, Inc.

a member of the LexisNexis Group.

All rights reserved.



*** RULES CURRENT THROUGH CHANGES RECEIVED BY February 15, 2011 ***

*** ANNOTATIONS CURRENT THROUGH Feb. 11, 2011 ***

Florida Family Law Rules of Procedure

Fla. R. Fam. Law R. Proc. 12.407 (2011)

Review Court Orders which may amend this Rule

Rule 12.407. Testimony and Attendance of Minor Child



No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.


NOTES:

COURT COMMENTARY

1995 Adoption. This rule is intended to afford additional protection to minor children by avoiding any unnecessary involvement of children in family law litigation. While due process considerations prohibit an absolute ban on child testimony, this rule requires that a judge determine whether a child's testimony is necessary and relevant to issues before the court prior to a child being required to testify.

USER NOTE:
For more generally applicable notes, see notes under the first section of this group or subgroup.

Fla. Stat. § 90.612

LEXSTAT FLA. STAT. 90.612

LexisNexis (R) Florida Annotated Statutes

Copyright (c) 2011 by Matthew Bender & Company, Inc. a member of the LexisNexis Group.

All rights reserved.



*** STATUTES AND CONSTITUTION ARE CURRENT THROUGH ACT 2010-283 OF THE 2010A SPECIAL SESSION AND THE NOVEMBER 2010 GENERAL ELECTION ***

*** Annotations current through Feb. 11, 2011 ***

TITLE 7. EVIDENCE (Chs. 90-92)

CHAPTER 90. EVIDENCE CODE

GO TO FLORIDA STATUTES ARCHIVE DIRECTORY

Fla. Stat. § 90.612 (2011)



§ 90.612. Mode and order of interrogation and presentation

(1) The judge shall exercise reasonable control over the mode and order of the interrogation of witnesses and the presentation of evidence, so as to:

(a) Facilitate, through effective interrogation and presentation, the discovery of the truth.

(b) Avoid needless consumption of time.

(c) Protect witnesses from harassment or undue embarrassment.

(2) Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.

(3) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

The judge shall take special care to protect a witness under age 14 from questions that are in a form that cannot reasonably be understood by a person of the age and understanding of the witness, and shall take special care to restrict the unnecessary repetition of questions.


HISTORY: S. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 1, ch. 95-179; s. 2, ch. 2000-316

By Kenny Leigh