Understanding Due Process in Domestic Violence Cases

The Role of Child Attendance at Hearings

In a recent case before Florida’s First District Court of Appeal, Schmigel v. Schmigel (Case Nos. 1D24-1572 & 1D24-1597, March 12, 2025), an issue arose regarding due process and whether a minor child could attend and testify at a domestic violence injunction hearing without prior court approval. This case sheds light on the interpretation of Florida Family Law Rule of Procedure 12.407(a) and its implications in family law proceedings.

Case Background

The case involved a former wife who appealed domestic violence injunctions issued against her in favor of both her former husband and their sixteen-year-old daughter. Her primary argument on appeal was that her due process rights were violated when the court allowed the child to attend and testify at the final hearing without a prior court order, as required under Rule 12.407(a).

Understanding Rule 12.407(a)

Florida Family Law Rule of Procedure 12.407(a) states:

Children who are witnesses, potential witnesses, or related to a family law case are prohibited from being deposed, subpoenaed, or attending family law proceedings without a prior court order based on good cause shown. This rule applies to both in-person and remote proceedings.

The intent behind this rule is to protect children from the emotional and psychological burden of family law litigation. However, the appellate court noted that this protection is aimed at safeguarding children—not necessarily the interests of a respondent parent facing a domestic violence injunction.

The Trial Court’s Decision

In this case, there was no prior court order allowing the daughter’s attendance or testimony. The former wife’s attorney raised this issue during the hearing, but the judge ruled that an order was unnecessary since the child was a party to one of the cases. Ultimately, the trial court allowed the daughter to testify, emphasizing her credibility and academic excellence as a “straight-A honor student.”

The Appeal and the First DCA’s Ruling

On appeal, the First District Court of Appeal did not find a due process violation. The court pointed to the following key factors:

• The former wife had notice of the allegations and a full opportunity to be heard.
• Her attorney was able to cross-examine the daughter during the hearing.
• There was no objection to the child’s testimony, nor was there a request for a continuance.
• The court found the daughter’s testimony credible and relevant.

Since the former wife’s legal counsel had every opportunity to address and challenge the testimony during the proceedings, the First DCA affirmed the injunctions without addressing whether a prior court order for the child’s testimony was technically required.

Key Takeaways for Domestic Violence Cases

1. Due Process Requires Notice and Opportunity to Be Heard
   • A party’s due process rights are generally considered upheld if they receive notice of the allegations, have the chance to respond, and can cross-examine witnesses.
2. Rule 12.407(a) Protects Children, Not Necessarily Parents
   • While this rule restricts child participation in family law cases, courts may allow children to testify if their testimony is deemed relevant and their presence is not formally challenged.
3. Failure to Object Can Weaken an Appeal
   • If a party does not object to testimony or request a continuance during the hearing, it becomes difficult to argue a due process violation on appeal.

Conclusion

The Schmigel v. Schmigel ruling underscores the importance of procedural objections during domestic violence hearings. Attorneys representing respondents in these cases should proactively challenge procedural irregularities at trial rather than relying on appellate courts to overturn unfavorable rulings. Meanwhile, Florida courts continue to balance the protection of children with the fair adjudication of domestic violence claims, emphasizing the need for clear procedural safeguards in these emotionally charged cases.

For more legal insights and updates on Florida family law, visit AttorneyThatRides.com.