Testifying in a dissolution of marriage case is stressful, so let’s not allow the parties to testify.” Sound bizarre?
How about, “We know that appearing in court causes stress to attorneys so we are going to have the attorneys appear via social workers who will present the attorneys’ arguments for them.” Sound absurd?
Then how about a judge saying, “I never allow children to testify in family court because it is stressful for them.” I attended a family law seminar in October 1997 at which a panel of six judges and general masters appeared. Two of the six proudly made this very statement. In light of the fact that most parents cannot afford to hire a psychologist to testify and that there are not enough guardians ad litem to go around (and even fewer good ones), this judicial view means the exclusion of the testimony of those who may be most affected by the family court decisions. Yet this judicial view is growing.
Since Florida’s Family Law Rules were amended to provide that a child is not to testify unless the court first determines that a child’s testimony is necessary and relevant to the issues, Florida Family Law Rule 12.407, I have sought to have children testify in three different types of cases.
The first case was a change of custody case. A 10-year-old girl, who was in the legal custody of her father but seeking refuge with her mother, wanted to testify that her father was smoking crack cocaine and that there was rarely anything in the refrigerator to eat. The judge denied my motion to allow the child to testify without even holding a hearing on the motion. All of the girl’s testimony became inadmissible hearsay. The girl was fearful of going back to her father. Fortunately, my client and I found some police officers who testified that the father was known as a crack user and the father tested positive for cocaine on a drug test.
The second case was a change in visitation case. A 16-year-old girl, who was living with her mother, wanted to testify that there were problems at her father’s house in which she did not want to be involved, and, therefore, she did not want to visit him as frequently. A psychologist was willing to testify that this girl was emotionally mature and it was important that the teenager be allowed to be heard. The judge denied my motion to allow the child to testify without even holding a hearing on the motion. All of the teenager’s testimony became inadmissible hearsay. The teenager was angry at the court for not letting her be heard. She is not unusual. Exclusion from the decision-making process typically makes children angry.1 Such anger causes the child more stress than if he or she had testified in court.
The third case was a domestic violence case. A man who had been physically disabled in the Vietnam War obtained a temporary injunction by accusing his wife of not feeding him enough and of hitting him. The 14-year-old and 10-year-old sons who were living with the parties wanted to testify at the injunction extension hearing that their father ate what he wanted at meals and the rest of the family then ate what was left, and that they had never seen their mother hit their father. The judge denied my motion to allow the children to testify without even holding a hearing on the motion. The boys’ testimony became inadmissible hearsay. The injunction was extended. Later, it was overturned as having been falsely obtained.
What do all three cases have in common? The judge in each case, like the judges at the seminar, has publicly stated that it is never in the best interest of children to testify in family law matters. Where did such a view come from?
I looked at the law. The law states that in custody and visitation matters the court is supposed to consider the desires of the children. F.S. §61.13(3)(i).
I researched the social sciences literature to see if it supported the judges’ belief. It did not. In Conducting Child Custody Evaluations, Stahl writes, “We must give more weight to the wishes of an older child, but all children need to have their feelings and wishes heard and understood.”2 In The Custody Evaluation Handbook, Bricklin states, “[M]y own feeling is that [a child’s testimony] would be exceedingly helpful in some cases and injurious in others.”3 Melton and others found that often there were beneficial effects of asking children their opinion by giving them some control over their own fate.4 Kandel wrote, “To summarize, a survey of developmental psychology suggests that from early middle childhood on, children have the maturity to choose their custodians.”5 This does not mean that all children will want to make a choice, and those who do not want to should not be force. Likewise, those who do want to make a choice should not be denied the opportunity.
I asked a locally respected psychologist, William Hafling, if I had missed something in my research and if the current position of psychology supported the judges’ belief that it was never in the best interest of children to testify in family law matters. He said it did not. On the contrary, it was the current position of psychology that whether a child should or should not testify needs to be decided on a case-by-case basis focusing on the individual child and that child’s situation.
Since there is no basis in law or in the social sciences for the view of these judges, I think we must look elsewhere for an answer as to why this view is held. It has been suggested that such theories are popular because they take the burden of decisionmaking away from the judge.6 I, on the other hand, believe the judges are acting with good, but misguided, motives. I believe the judges have read books such as the one based on the study of 131 children done by Judith Wallerstein in which she stated, “For children and adolescents, the separation and its aftermath was the most stressful period of their lives.”7 Some judges are trying to reduce this stress at all costs. However, later research of 8,000 children done by the National Institute of Mental Health in 1985 found that the emotional effects of divorce on children are not any more permanent than other major events which occur during the rise of all of us into adulthood.8 Most children get over it. In fact, some children are relieved by the divorce of their parents and are ready to move on immediately.9 The problem with the judges acting on incorrect assumptions such as “all children want to avoid the stress of choosing one parent over the other” is that it leads to the application of universal rules, and once these rules are in place, they are hard to remove.
The “tender years” doctrine was such a theory. For years the courts applied this theory to child custody cases to give custody of children to the mothers unless they were shown to be unfit.10 Under this theory, 90 percent of the awards of custody were to mothers.11 & #x201c;It has been sex discrimination against men in the most blatant way.”12 At the time it was developed as a theory, most fathers worked outside the home and most mothers stayed home with the children. There was little research on the theory. Someone has said that the law is only as good as the previous generation’s sociological research. So the use of this theory in the past may be explained. However, by the 1980s, custody regulations no longer fit well with people’s situations.13 Seventy-five percent of women with children under 14 now work outside the home14 and current research of psychology and sociology does not support the tender years doctrine.15 In fact, we now have studies that show that such sociological engineering may have been detrimental to the children and society. “Children living in homes where fathers are absent are far more likely to be expelled from or drop out of school, develop emotional or behavioral problems, commit suicide, and fall victim to child abuse and neglect. The males are also far more likely to become violent criminals. As a matter of fact, men who grew up without dads currently represent 70 percent of the prison population serving long-term sentences.”16 Girls who grow up without their fathers are more likely to be sexually precocious,17 resulting in early pregnancy and increased likelihood of divorce.18 The incidence of stepfather/stepdaughter incest is five times higher than for natural father/daughter incest.19 On the other hand, children whose fathers are around and are involved in their schoolwork get better grades.20 and daughters who grow up with involved dads are more emotionally and intellectually mature.21 However, once in place, it took two legislative amendments to try to rid the court system of the tender years doctrine. F.S. §61.13(2)(b)(1). Unfortunately, many judges still ignore the explicit statutory language that men and women are to be treated equally in custody matters and still apply the tender years doctrine. Ayyash v. Ayyash, 700 So. 2d 752, n.3 (Fla. 5th DCA 1997).
The “children don’t ever lie” maxim was another such theory.22 For years the case workers and juvenile courts applied this theory to child abuse allegation cases unless the accused could prove his or her innocence. While this theory contradicted the common sense of anyone who has raised a child, it still could be explained by a lack of research on the issue. However, recently there have been articles citing studies which show that children do tell lies.23 One study found 23 percent of abuse allegations are false and there was insufficient information to determine the truth in another 24 percent of the cases.24 One author on the subject stated: “We know that even preschool children can lie, do lie, and if sufficiently self-motivated or coached, will lie. Whether a child is lying in his or her report depends on an assessment of a rich assortment of factors, including the child’s developmental capability, the motivations for and against telling the truth, the contextual significance of the child’s accuracy, the nature of the process used to probe the child’s truthfulness, and the characteristics unique to that child.”25 Among the child abuse cases that have fallen apart in the courtroom are the McMartin preschool case in California, the Little Rascals case in North Carolina, the Margaret Kelly Michaels case in New Jersey, the Fells Acres case in Massachusetts, and the Wenatchee, Washington case. Fortunately, child abuse is alleged in only a small percentage of family law cases. However, false allegations of domestic violence against spouses are a growing problem.26 In fact, a judge in Tampa has recently admitted that she falsely accused her husband of abuse and improperly obtained a domestic violence injunction during her dissolution of marriage.27
And so it is with this new theory that “it is never in the best interest of children to testify in family matters.” Poppycock. It’s another theory, creeping in on cat feet, that undermines the main purpose of our judicial system. “Although minimizing trauma for child witnesses is an important social objective, the paramount purpose of a trial is to discover the truth about some disputed event or transaction.”28 However, this theory not only contradicts common sense (are we to cancel school testing and dentist appointments for children because they cause stress?) but also it flies in the face of the social sciences research. Someone needs to stand up and say, “The judges, like the emperor, have no clothes.”
I hope to stop another oversweeping generality from becoming an accepted court maxim. Therefore, rather than an inflexible “children should never testify in family law matters” approach, I think a judge should question a child in any case in which a motion is filed that seeks to have the child testify. The judge should determine that: 1) the child is intellectually and emotionally mature enough to have a valid opinion (probably at least six years of age);29 2 ) the child knows the difference between truth and lies; 3) the child has an opinion on the issue before the court; 4) the child wants to voice his or her opinion (no child should be forced to make a choice between his or her parents if he or she does not want to); and 5) the child is not being threatened or bribed by someone to give a false opinion. If these criteria are met, then the judge should not take away the right of the child to have a voice in a major decision about that child’s life.
1 Note, Lawyering for the Child: Principals of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J . 1126, 1163–1164 (1978).
2 Philip Stahl, Conducting Child Custody Evaluations 72 (1996).
3 Barry Bricklin, Ph.D, The Custody Evaluation Handbook 227 (1995).
4 G. Melton, J. Petrila, N. Poythress, and C. Slobogin, Psychological Evaluations for the Courts (1987).
5 Randy Kandel, Just Ask the Kid! Towards a Role of Children’s Choice in Custody Determinations , 49 U. Miami L. Rev . (Winter 1994) 299, 367.
6 Allen Roth, The Tender Years Presumption in Child Custody Disputes , 15 J. Family L. 423, 438 (1977).
7 Judith Wallerstein and Joan Kelly, Surviving the Breakup 35 (1980).
8 Glynnis Walker, Solomon’s Children 5 (1986).
9 Id. at 4.
10 25 Fla. Jur . 2d Family Law Section 89 (1992) and cases cited therein.
11 Walker, supra note 8, at 165; Roth, supra note 6; Kaerrie Simons, Father Knows Best. . . About Discrimination , 7 The Crows Nest No. 7, at 4 (1998).
12 Doris Freed quoted in Simons, supra note 11, at 4.
13 Walker, supra note 8, at 165.
14 U.S. Department of Labor statistics.
15 Robert Fay, The Disenfranchised Father, 9 Am. J. Fam. L. 17–33 (Spring 1995); Roth, supra note 6, at 448–453.
16 Wade Horn, Why There is No Substitute for Parents, 26 Imprimis No. 6, at 2 (June 1997).
17 Linda Francke , Growing Up Divorced 24 (1983).
18 S. Mafanahan and L. Bumpass, Intergenerational Consequences of Family Disruption, 94 Am. J. of Soc. No. 1, 130–152 (1988).
19 Walker, supra note 8, at 68.
20 Involved Dads Boost Kids Schoolwork, L.A. Times, reprinted in St. Pete Times, A3 (Oct. 3, 1997); School Dropouts , Florida Department of Education Statistical Report (1976); Fathers’ Involvement in Their Children’s Schools , National Center for Education Statistics (Oct. 1997); H.B. Biller, Paternal Deprivation: Family, School, Sexuality, and Society (1974).
21 Good Morning America (television show, Feb. 17, 1998).
22 Kathleen Faller, Is the Child Victim of Sexual Abuse Telling the Truth? Child Abuse and Neglect 8:473 (1984).
23 Thomas Horner, The Biases of Child Sexual Abuse Experts, Believing is Seeing, 21 Bulletin American Academy Psychiatry Law No. 3, at 281 (1993); Terrence Campbell, False Allegations of Sexual Abuse and Their Apparent Credibility, 10(4) Am. J. of Forensic Psychol. 21–35 (1992); P. Ekman, Would a Child Lie? , 23 Psychology Today 62 (1989); M. Lewis, Deception in 3-Year-Olds, 25 Developmental Psychology 439–443 (May 1989); and William Slicker, Child Sex Abuse: The Innocent Accused, 91 Case and Comment No. 6, at 12–20 (1986).
24 Mistaken Child Abuse Cases Cause Trauma, St. Pete Times D3 (Feb. 26, 1991).
25 Lucy McGough, Child Witnesses: Fragile Voices in the American Legal System at 78, 95 (1994).
26 George Starkes, A Matter of Gender Bias, St. Pete Times A19 (Nov. 19, 1997); Misusing Domestic Violence Injunctions, St. Pete Times A17 (Mar. 28, 1998).
27 Prosecutor Seeking Judge’s Ouster, St. Pete Times B3 (Feb. 10, 1998).
28 Lucy McGough, Child Witnesses: Fragile Voices in the American Legal System 17 (1994).
29 Caraballo v. Hernandez , 623 So. 2d 563 (Fla. 4th D.C.A. 1993) (eight-year-old probably old enough); Gerscovich v. Gerscovich , 406 So. 2d 1150 (Fla. 5th D.C.A. 1981) (11-year-old probably old enough). But see Holmes v. Greene , 649 So. 2d 302 (Fla. 1st D.C.A. 1995) (ten-year-old probably old enough); Berlin v. Berlin , 386 So. 2d 577 (Fla. 3d D.C.A. 1980) (eight-year-old and 10-year-old probably not old enough).
William D. Slicker practices law in St. Petersburg. He received his B.A. and J.D. from Flo rida State University. He formerly served as a law clerk to Judge Stephen H. Grimes at the Second District Court of Appeal and to Judge Warren H. Cobb at the Fifth District Court of Appeal.
This article and the one that follows is submitted on behalf of the Family Law Section, Jane L. Estreicher, chair, and Sharon O. Taylor, editor.