to have access to the transcript of the in camera interview of the child, the parent must appeal the custody determination
How later courts described this case
- to have access to the transcript of the in camera interview of the child, the parent must appeal the custody determination
Written by the judges who cited it.
The opinion
TAYLOR, V.C.J.,
with whom OPALA, J., joins, concurring:
T1 I concur in the majority opinion and write further to emphasize the need to preserve basic fundamental due process in child custody proceedings.
T2 Child custody decisions are one of the most serious determinations a trial judge undertakes. The parent-child relationship is on the line in each of these trials. Once lost, the relationship is difficult to restore. These *160 trials must be conducted in a manner to assure due process rights of the parents and the child are respected.
[3 In determining whether to interview a child without the parents or counsel present and over one of the parent's objection, the trial court must begin with two long-held principles in our law. - The first is that court judgments and verdicts are based upon evidence presented in open court with all due process rights guaranteed. This principle of trial in an open court warns against private, secret, or confidential court proceedings. The second is that a parent has basic fundamental due process rights that include the right to be informed of the evidence used by the judge in deciding the contested issues in a case. A parent has a basic right to respond to any evidence that may be adverse to the parent's position. Any variance from these long-standing principles must not be lightly undertaken.
4 With these principles in mind, when a parent asks the judge to interview the child, the judge must make a preliminary determination of whether the child's best interest is served by conducting an in camera interview of the child. The judge must consider several questions in deciding whether to conduct an in camera interview. Is the child competent in all respects to give the interview? Has the child been influenced by either parent in anticipation of the interview? Is the interview the most effective method of seeking the absolute truth in the fact-finding process? All of these findings must be made a part of the trial record.
15 In addition to these preliminary determinations, when either parent objects to a child being interviewed in camera in the absence of the parents or the parents' attorneys, the trial judge must conduct a full and complete hearing on the objections and any responses to the objections and make a clear ruling on the objections and give the reasons for the ruling. The preliminary findings, the rulings, and the basis for the rulings should be made part of the record and should be included in an appellate record if an appeal is taken. These findings and rulings on the record insure that the trial judge has met the obligation of insuring the fundamental due process rights of both the parents and the child have not been violated. Nothing less is acceptable.