famiLy LaW ProCeeDings: CHiLDren’s aPPearanCe in Court
Marital & Family law Section
Chair:KatherineScott-Harris,Hunt&Derr,PA
the Committee
recommended that this
critical decision-making
authority be vested solely
I
n 2018, The Florida
Bar Family Law Rules
Committee proposed
an amendment to Fla.
Fam L. R. P. 12.407, regarding
attendance and testimony of
children at depositions and family
law proceedings. The change
eliminated the provision which
allowed a parent to, at their
discretion, bring a child who
was a witness, potential witness,
or related to a family law case to
the courthouse for a family law
proceeding “in an emergency
situation.” As amended, the rule
allows a child to attend a deposition
or family law proceeding only when
a parent has obtained a prior order
based on good cause shown.
The rule change was intended
to specifically make it more difficult
for parents to take matters into their
own hands and decide unilaterally
there was an “emergency” that
warranted the child’s attendance at
a family court proceeding. Instead,
the Committee recommended
that this critical decision-making
authority be vested solely in the
presiding judge.
The amendment is based on a
growing acknowledgment of the
damaging effect such entanglement
with litigation has on a child’s
welfare. Specifically, it has been
in the presiding judge.
found that conflict subjects a child
to “a feeling of chronic stress,
insecurity, and agitation; shame,
self-blame, and guilt; a chronic sense
of helplessness; fears for their own
physical safety; a sense of rejection,
neglect, unresponsiveness, and lack
of interest in the child’s well-being.” 1
However, the new rule has
introduced complications: more
judges are strictly interpreting the
showing of “good cause” required
for an order permitting appearance
and/or testimony of a child.
Additionally, given the exigencies
often surrounding instances in
which child testimony is sought,
lawyers and desperate parents have
had to resort to extreme measures,
including having children circle the
courthouse or wait in nearby areas
while motions regarding testimony
are heard. Other parents feel
compelled to simply ignore the rule.
The limitations of the rule
are critical to help preserve the
innocence and emotional well-being
of children; however, when strictly
enforced, the rule may also make
it more difficult for a parent to
present evidence of a significant
event to which the child is a
witness, which may in turn
negatively affect the child. The
bar and bench should be attentive
to the effect of this rule change
and strive to find the appropriate
balance between protecting children
from involvement in litigation and
allowing a parent to present prompt
testimony regarding critical matters
affecting their children’s welfare.
Notably, the 2018 Committee
Note accompanying the rule
clarifies that children unconnected
to litigation may be brought to
the courthouse or a deposition
for educational purposes or other,
non-case related reasons. Lawyers
and parents should be mindful of
the intent of the rule and do what
they can to protect children from
unnecessary involvement in
litigation. n
Elizabeth Ellis, The Trowbridge
Foundation, What Have We Learned
from 30 Years of Research on Families
in Divorce Conflict?, at 2, citing
Elizabeth Ellis, Divorce Wars,
Interventions
with Families in
Conflict (APA
Books 2000).
1
Author:
Cory Brandfon –
Harris Hunt &
Derr, P.A.
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40
MAR - APR 2020
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HCBA LAWYER