To begin, Florida Courts are reluctant to let minor children testify in Family Law disputes. Unless the Court finds that the child’s testimony is necessary, it is unlikely the child will be allowed to testify. If the Court does feel the child’s testimony is necessary, it must be verified that the child is competent and capable of observing, recollecting, narrating facts, and has a moral sense of the duty to tell the truth. While it is true that an older child would be more likely to be permitted to testify than a younger child, age is not the determining factor. A younger child, who is more mature may be permitted to testify while an older, less mature counterpart is not.
Next, all time-sharing orders (What days/times each parent is responsible for the children) in Florida are determined based on what the Court finds is in the best interest of the minor child(ren). The Florida statutes provide a long list of criteria that judges use when determining what time-sharing arrangement is in a child’s best interest. While the preference of the child is one of the criteria that judges are to take into consideration, that factor alone is not enough to determine what is in the child’s best interest. For example, if a child is permitted to testify and unequivocally states that he or she wants to live with Parent A, but the Court finds that Parent B provides a more stable environment and has more time to spend with the child, the Court will almost certainly favor more time with Parent B. A primary reason for this is that children are often unaware of what is in their best interest. They may choose one parent over the other based on which parent allows them to stay up later or go out longer, rather than which parent is providing the more nurturing and stable environment.
So when will a child's preferences be strongly considered? The Courts are more likely to consider a child's preferences when one parent can prove that the child is experiencing some sort of emotional trauma or instability while with the other parent. Likewise, if the child’s preference is based on accusations of abuse or neglect by one of the parents, the court would certainly take that into account.In conclusion, there is no set age when a child can determine which parent they will live with, at least not until they turn eighteen. Courts are unlikely to let a minor child testify, except in rare cases and even then, their preference will likely be given little weight unless supported by other factors. If you are going through a dissolution of marriage or paternity case and your child is expressing a desire to live more often with you or the other parent, it is a good idea to ask your attorney about the possibility of having a Guardian Ad Litem appointed. The Guardian Ad Litem may be able to meet with the children and the parent’s and make a 3rd party recommendation to the Court based on what they determine to be in the child’s best interest. For more information, please contact the Law Office of Pamela J Helton at (352) 243-9991 or check out our website at www.AttorneyHelton.com.
Written by: Attorney Barry Newton