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
