The involvement of minor children in family court proceedings presents a delicate challenge, balancing the fundamental due process rights of parents with the overarching need to protect the children’s well-being. Child custody determinations, as noted in Peterseil v. Peterseil, are “some of the most difficult and sensitive problems [that] face the judiciary”. Over time, the legal framework has significantly evolved to address this complexity, moving towards a more child
centric approach while refining procedural safeguards for all parties.
The Florida Family Law Rules of Procedure reflect this protective stance. Rule 12.407, “Testimony and Attendance of Minor Child,” serves as a cornerstone, establishing a prohibition against children who are witnesses, potential witnesses, or related to a family law case from being deposed, brought to a deposition, subpoenaed, or attending any family law proceedings without a prior court order based on good cause shown. This rule was specifically adopted “to afford additional protection to minor children by avoiding any unnecessary involvement of children in family law litigation” and to safeguard those “who may be harmed by unnecessary involvement”. Despite this, the rule acknowledges that an absolute ban on child testimony is not permissible due to “due process considerations,” thus requiring a judicial determination of necessity and relevance for a child’s testimony.
The legal system sought methods to incorporate children’s perspectives without exposing them to the adversarial nature of open court. Consequently, the in-camera interview became a preferred method for courts to obtain a child’s views. This involves a private meeting between the judge and the child, typically “outside the presence of the parties and their counsel”.
The Third District Court of Appeal in Monteiro v. Monteiro, 55 So. 3d 686 (Fla. 3d DCA 2011), affirmed a trial court’s discretion to mandate such an interview. The court reasoned that this approach was “well within its discretion and consistent with its obligation to act in the children’s best interests”. In particularly sensitive situations, such as allegations of sexual abuse against a parent, the court recognized that conducting the interview outside the accused parent’s presence might be the “only way to obtain the truth from the minor children”.
While in-camera interviews protect children, they can simultaneously create due process challenges for parents who cannot directly observe or cross-examine the testimony. The legal framework has progressed to address this tension by mandating transparency. In Hickey v. Burlinson, 33 So. 3d 827 (Fla. 5th DCA 2010), the court emphasized that due process requires a court reporter to be present to transcribe the children’s in-camera testimony. This ensures “meaningful judicial review” and allows parties “access to the content of the interview” to respond to the evidence.
This requirement for a record was underscored in Talarico v. Talarico, 305 So.3d 601 (Fla. 3d DCA 2020). The court reversed a custody modification order that primarily relied on an unrecorded in-camera interview. It unequivocally stated that the trial court’s failure to record the interview or provide an appraisal or summary of the children’s testimony violated the mother’s right to due process. Talarico reinforced that “due process and fundamental fairness require that a parent have access to the content of the interview”, as such documentation is “vital to enable meaningful appellate review of the evidence relied on by the trial court”.
Throughout this evolution, the “best interests of the child” remains the “primary consideration” for courts when establishing or modifying parenting plans. Florida courts consistently apply “equitable principles of fundamental fairness and the best interest of the child in reviewing all the facts and circumstances of the specific case”. Modification proceedings, in particular, carry an “extraordinary burden” for the petitioning party, given their potential to disrupt children’s lives.
The stated preference of a child is considered, particularly “if the child possesses sufficient maturity and understanding to make an intelligent choice”. In Harrell v. Friend, 388 So.3d 1086 (Fla. 1st DCA 2024), the court highlighted that the children’s increased age and ability to express their preferences were relevant factors requiring an evidentiary hearing on a father’s petition for modification of a parenting plan.
The procedural rules continue to adapt, recognizing changes in legal practice. A 2022 amendment to Florida Family Law Rule of Procedure 12.407(a) extended its protective scope to remote proceedings conducted via communication technology. It now explicitly requires the court, parties, and counsel to “ensure that children are not present or nearby during any remote proceedings or able to overhear any remote proceedings”.
In conclusion, the journey of child involvement in family court has been one of increasing sophistication. It prioritizes the protection of children from undue stress and involvement, while simultaneously ensuring that parents’ due process rights are respected. This is largely achieved through confidential in-camera interviews, coupled with strict requirements for recording or summarizing the children’s testimony, thus upholding the paramount consideration of the child’s best interests through transparent and reviewable judicial decisions.
Anthony Meehan Genova is a highly qualified legal professional specializing in family law, particularly known for his extensive experience in mediation and his commitment to community service. Mr. Genova is Board Certified in Marital & Family Law. This certification signifies Florida’s official, independent determination of a lawyer’s expertise to practice in a specialty field of law, widely regarded as the “gold standard” for Florida lawyers. The Board Certification program, officiated by The Florida Supreme Court and administered by The Florida Bar, began in 1982 to help the public select lawyers who are distinguished in particular areas of law. The Florida Bar thoroughly evaluates all board-certified lawyers for credibility and expertise in their specific area, as well as for professionalism and ethics in the practice of law, encapsulated by the slogan “Evaluated for Professionalism, Tested for Expertise”.
To achieve this esteemed certification, Mr. Genova, like all board-certified lawyers, demonstrated a dedication to achieving a heightened level of excellence through character, professionalism, ethics, and credibility. The rigorous process requires lawyers to have practiced law for at least five years before becoming eligible and to show substantial involvement in their chosen area of law. He successfully passed a comprehensive examination that evaluates a high level of knowledge, skills, and expertise in the specialty field, and underwent a rigorous peer-review process assessing competence, professionalism, and ethics. Additionally, board-certified lawyers must satisfy continuing legal education requirements that are more robust than those for general licensure. This certification is valid for five years, requiring continued practice and attendance of Florida Bar-approved continuing legal education courses for recertification. As of 2023, fewer than 5,000 lawyers in Florida, representing only 5% of eligible Florida Bar members, have earned board certification. Recent research indicates that lawyers who list themselves as “board certified” in a specialized area are 25% to 40% more likely to be hired than non-board-certified counterparts with similar credentials. When retaining a board-certified lawyer like Mr. Genova, clients gain access to specialized expertise, professionalism & ethics, credibility, and a heightened dedication to excellence. His rigorously evaluated experience and competency offer clients assurance of a heightened level of proficiency in Marital & Family Law.
In addition to his board certification, Mr. Genova has been a Supreme Court Certified Marital & Family Law Mediator since 2019. He has been a dedicated member of the Executive Council of the Family Law Section of the Florida Bar since 2016. His significant involvement within this section includes various leadership and committee roles, demonstrating a deep engagement with the evolution and practice of family law: Co-chair of the Rules and Forms Committee (2018-
2020), Chair of the Membership Committee (2016-2017), Vice Chair of the Domestic Violence Committee (2017-2018), Co-Vice Chair for Diversity and Inclusion (2023-2024), Member of the Equitable Distribution Committee (2017-2020), Member of the Support Issues Committee (2014- 2018).