Posted by Nydia Streets of Streets Law in Florida Domestic Violence
Florida Rule of Family Law Procedure 12.407 prohibits a child who is a witness or related to a family law case from being compelled to attend and testify at a hearing without prior order of the court based on good cause shown. This rule is designed to safeguard children from the effects of a court proceeding. Does this rule expand the due process rights of the parents involved in the proceeding? This was an issue in the case Schmigel v. Schmigel, 1D2024-1572 (Fla. 1st DCA March 12, 2025).
The wife in this case appealed two domestic violence injunctions entered against her. One was entered on behalf of her minor child. The child testified at the hearing, and on appeal, the wife argued it violated her due process rights for the court to allow this because no prior order was entered in compliance with Fla. Fam. L. R. P. 12.407 to permit the child’s testimony.
The appellate court rejected this argument, noting “Appellant’s counsel raised the issue of H.S.’s attendance at the hearing and the lack of a ‘prior order of the court’ before any testimony or argument was presented. The court agreed that there was no prior order but stated that it did not ‘believe a court order is necessary’ because H.S. was a party to one of the petitions.” The court further noted “Upon the trial court’s inquiry, H.S. informed the court that she was sixteen years old. Appellant’s counsel did not argue that H.S. might be harmed in any way by remaining at the hearing. Before her testimony, H.S. told the court she wanted to testify. During her testimony, H.S. told the court that she was a ‘straight- A honor student’ and that she wanted to attend college. The trial court found H.S.’s ‘testimony and demeanor highly credible’ evidence. Appellant did not assert any contemporaneous objection to the admissibility of H.S.’s testimony and there was no motion to continue the hearing.”
The court concluded “Because rule 12.407(a) was promulgated to protect minor children who may be harmed by unnecessary involvement in family law proceedings, we find that the rule does not expand the due process rights of a respondent parent defending against a petition for injunction against domestic violence. Because we find no violation of Appellant’s due process rights in the trial court’s allowing H.S. to attend the hearing and testify without a prior order of the court, the final judgments on appeal are affirmed.”
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