Scenario: Tim and Samantha are going through a divorce. Tim is off on the weekends and Samantha has to work on the weekends. They have been separated for six months now while waiting for trial. They have one male child, Jason, who is 13 years old. Jason lives with his dad Friday night through Sunday night. Jason lives with his mom Monday night through Thursday night. Jason wants to live with his dad because his dad buys him all kinds of electronics and takes him on trips on the weekends while his mom is working. Samantha takes care of Jason every day making sure his homework is completed and has him do his daily chores. Since Samantha works on the weekends and Jason is in school during the week, she can't take him to do the fun things like his dad does. Tim and Samantha cannot agree on who should have their child the majority of the time, although they are close to a 50/50 timesharing arrangement. Jason told his dad he wants to live primarily with him. Larry, Tim's attorney, files a motion with the court asking for Jason to testify as to his wishes.

MY RESPONSE post to the scenario:

Initial Post

The judge will decide whether or not to allow a small kid to testify in court in a custody dispute. When evaluating all of the facts of the case, the judge has complete discretion in allowing such a kid to testify. Before allowing a kid to testify, the judge may compel the seeking parent to schedule a court hearing. The court will be provided information and consider relevant considerations while deciding whether or not to allow the kid to testify.(Florida Family Law Rule of Procedures 12.407

There was already a final judgment in Garvey v. Garvey addressing the custody arrangements for the parties' 4 minor children. After four months, the father wanted to change the arrangement. It was stated in the judgment that"To justify modification, the court must find a substantial change in circumstances since the date of the original judgment and detriment to the children if custody is not changed."Further, the court proceeded to state,"In fact, the only basis for the trial court's modification which is apparent from the record is that Michael had stated a preference to live with his father. Although the preference of a child is one factor to be considered, it cannot control the disposition of custody."

Secondary Post

William D. Slicker, a divorce lawyer in St. Petersburg, Florida, has described three situations where he has permitted children to testify. One example is when a 10-year-old girl in his father's custody requested a change of custody, and to do so, she was had to testify in court about her father's behavior, in this case, his crack cocaine addiction. The girl also narrated that there was no food in the refrigerator. The judge in this case initially denied the motion to testify without holding a hearing about such a motion. Fortunately, William Slicker and his client have found police officers who would testify about the father's addiction, and later, the father was found positive for cocaine on a drug test. The other 2 cases involve domestic violence cases (16-year-old) and visitation cases (14 and 10 years old) wherein the child was not allowed to testify.

It's worth noting that all three cases handled by William D. Slicker involving a child's testimony in a custody dispute have one thing in common: the judges have publicly declared that it's never in the child's best interest to testify in family law proceedings.

Only in the most difficult situations, according to William D. Slicker, would a kid be allowed to testify if it was in the child's "best interest." He would not allow Jason to testify only because his father provides him with electronics. I agree with William Slicker that a judge should enable the kid to be heard when deciding whether or not they will be permitted to testify in court since this is in the child's best interests. Either with the mother or the father, the kid has firsthand knowledge of the environment in which they reside.

Applying the Garvey case to Jason's situation, the court should evaluate if Samantha's (the mother's) circumstances have changed before allowing him to testify. The judge must determine the circumstances behind the motion to alter or modify Jason's custody first. In this instance, Jason's motives for seeking to alter his custody have no bearing on his best interests.

HELP ASSIGNMENT QUESTION (relation to the above scenario and my response):

Using the Scenario presented above, complete the following elements of a Trial Brief on behalf of the client, either Sarah or Tim.

1. Locate Floridas "Rules of Law" related to the scenario above (statutes and/or case law). You should be looking for laws related to child custody and related matters such as parental responsibility and timesharing, child support, alimony, and equitable distribution. You will use these when developing your Question Presented or Issue section(s).
2. In logical and numerical order, include in a brief outline form, the elements that are found in most trial briefs. Your response to the scenario should be like a roadmap for writing your trial brief, which should include the major headings (topics) and subheadings (main categories/subcategories).
3. Develop the Question Presented or Issue section(s) by introducing each of its elements such as the law, the question, and the key facts in a persuasive manner. You should be developing separate issues for child custody and related matters such as parental responsibility and timesharing, child support, alimony, and equitable distribution.
4. Develop the Statement of Facts section. The Statement of Facts section is one of the first things the judge reads, so this is your chance to win over the judge. Keep the following things in mind when completing this section:

a. You can refer to your client by name.

b. While being truthful, make your client look as good as possible. If there are any facts that make your client look bad, try to present them in a less noticeable way.

c. You can present the facts in chronological order or in topic order.

d. Present the facts in the past tense.

NOTE: Do not use this section to argue your case.