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Can My Estranged Spouse Bring Our Child to Court During Our Divorce Proceedings?


Patricia J. Kelly, a judge on Florida’s Second District Court of Appeal, recently issued an opinion that should serve as a cautionary tale for all parents in the midst of divorce proceedings. Judge Kelly was part of a three-judge panel that heard an appeal of a divorce case from Pasco County. The substance of that appeal is not what Judge Kelly addressed in her concurring opinion. Rather, she took the unusual step of writing to comment on something that happened during oral argument in the case before the Second District.

As Judge Kelly explained, both the mother and father were present at oral argument, along with their six-year-old son. The mother’s attorney told the judges that his client “wanted to be there and she brought the child because he was sick.” The father’s attorney expressed concern regarding the child’s presence, but the judges concluded there was “no legal basis” to require him or the mother to leave.

Because the child remained, Judge Kelly noted, he was “exposed to a discussion about the parents’ conduct to which no child should be privy.” She added that after the oral argument ended and the parties had left the courtroom, the child tried to “go to see his father,” but the mother prevented him from doing so.

Judge Encourages New Rule to Prevent Minors from Attending Appellate Arguments in Parental Divorce Cases

Had this been the actual trial of the parents’ divorce–as opposed to an appeal–the child would not have been permitted to remain in the courtroom. Florida court rules governing family law proceedings expressly state that “[n]o minor child shall be … brought to court to appear as a witness or to attend a hearing” unless the trial judge finds there is a “good cause” to allow such attendance. Judge Kelly pointed out this rule is in place “to protect children who may be harmed by unnecessary involvement in family law proceedings.”

That being said, Judge Kelly said she–and presumably her colleagues on the Second District panel–did not believe this rule extended to appellate proceedings. And while “common sense” might dictate it is inappropriate to bring a minor child to an appellate oral argument–where, it should be noted, even the parents are not required to attend–Judge Kelly said given the events of this case, she would “encourage the Appellate Court Rules Committee” to adopt a formal rule prohibiting minors from attending appellate oral arguments.

Get Advice from a Qualified Florida Divorce Lawyer

Indeed, Judge Kelly is right in her call for parents to exercise some common sense. A divorce trial (or appeal) is no place for a minor child except under certain exceptional circumstances approved by the court itself. Divorce is stressful enough on a child without them having to bear personal witness to proceedings which are by their very nature adversarial.

If you have additional questions about the legal process of divorce and how to mitigate the potential impact on your children, contact the Boca Raton child custody attorneys at WiseLieberman, PLLC, today at 561-488-7788 to schedule a consultation.




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