Kids and Court

Judges Talking to Kids in Chambers     The practice of judges interviewing children in chambers both on and off the record is of common practice in Colorado and around the country. While courts in other states have tackled the subject, there are no Colorado appellate level decisions. However, CRCP 43 Evidence requires that the testimony of witnesses must be taken in open court unless otherwise provided by rules of civil procedures, evidence rule, or other statutes (except for Federal Rules of Evidence).   Some questions raised regarding judges speaking with children in chambers, include:   Questions Does it make any difference what type of proceeding (parental responsibility, parenting time, parental termination, etc.) for which the interview is being considered? What type of notification is required for the judge to speak to children in chambers? Is the parties’ express consent or failure to object after notice was given sufficient to waive the right to claim error on appeal? Can a judge ask parents to leave the courtroom while the child is testifying if the child is uncomfortable in the presence of parents? May the court consider the results of an independent investigation in a child custody case if both parties stipulate? Should a record of the in-chamber interview be required for purposes of appellate review? If parties consent to the in-chambers interview, does that automatically waive their right to appeal the judge’s decision to interview in chambers? How can the courts balance the interest of protecting the child and giving the child the opportunity to speak in a less stressful environment with the right of the parties to have a complete record of all evidence for appellate review? If a record of the interview is made and sealed by the trial court, should it be unsealed for purposes of making an abstract or record on appeal? Does an in-chambers interview result in a more “full and frank” disclosure than if the child testifies as an ordinary witness? If the party’s attorney objects and wants to be present during the interview and the judge refuses to grant the request, is this grounds for reversal?   A sampling of how other states handle judges’ interviewing children in chambers, includes:   Mississippi Robison v. Langford, 841 So.2d 1119 (Miss. 2003). Custody case Court determined that a record of the child’s interview in chambers must be made in order for the parties to have an opportunity for a thorough appellate review. Agreement of parties to the in-chambers interview does not waive the issue for appellate review.   Georgia The Uniform Superior Court Rules requires a record be made of a child’s interview in chambers (Uniform Superior Court Rules 24.1).   Illinois Illinois Marriage and Dissolution of Marriage Act establishes guidelines for in-chambers interviews and requires a court reporter to be present and a complete record to be made [750 Ill. Comp. Stat. 5/640(a)].   Arkansas McNair v. Johnson , 75 Ark.App. 261, 57 S.W.3d 742 (2001). Custody case Transcript of child’s interview was sealed by trial court. Appellate court grants the unsealing of the record so that father can create an abstract of the relevant evidence in accordance with Rule 4-2(a)(6) of the Rules of the Supreme Court. Court determines that there is no way to conduct a meaningful review according to the rules set forth in the Rules of Appellate Procedure — Civil, without unsealing the record and allowing the father to view the transcript in order to create an abstract. Dissent argues that the record was sealed in order to protect the child and unsealing may jeopardize that child’s relationship with father. Dissent — would adopt the alternative solution of waiving the abstract requirement and having the court review the transcript directly. This method protects the child while still allowing for appellate review.   North Carolina 147 N.C.App. 399, 555 S.E.2d 643 (2001). Termination case Court can use a child’s in-chambers interview that was recorded to determine that it is in the best interest of the child to have parental rights terminated.   Alabama King v. King, 636 So.2d 1249 (Alabama App. 1994). Custody case Judges are permitted to conduct in-chambers interviews with minor children provided that the parties are first notified of such intentions and either expressly consent or fail to object after notice is given. Judges can require parents to leave the courtroom while a child is testifying on the record, if the child has expressed discomfort at testifying in their presence.   District of Columbia In re I.B; In re S.B, 631 A.2d 1225 (DC App. 1993) Termination case Trial judge has sound discretion to choose between interviewing the child in chambers or having the child testify on the witness stand.