How must a court conduct an interview of a child witness?

Child Witness

Gordon vs. Geiger (Child Custody) (Nev. Supreme Ct. – Sep. 27, 2017)

In this case, the Supreme Court of Nevada examined a district court’s sua sponte order permanently increasing visitation with the parties’ minor children. The district court based its order on unrecorded interviews the judge conducted independently with the children and an unsubstantiated Child Protective Services (CPS) report that was not admitted into evidence. The Court took this opportunity to provide guidance for when the district court wants to interview a child witness.

Gordon and Geiger divorced in 2011. Pursuant to their divorce decree, both were awarded joint legal custody of their two minor children; Gordon was awarded primary physical custody, and Geiger received limited visitation.

In 2011, before the district court entered the decree of divorce, the judge interviewed the parties’ children with the children’s guardian ad litem present. A return hearing immediately followed. Pursuant to the court minutes from the return hearing, the court ordered that Gordon’s boyfriend was not to physically discipline the children in any way. The district court never entered a written order on this issue.

In early 2014, the district court entered a written order modifying Geiger’s visitation to every other weekend. Subsequently in July, Geiger was arrested and incarcerated for 23 days due to an outstanding warrant for parole violations. Gordon then filed a motion for an order to show cause, alleging that Geiger violated court orders concerning custody and child support. Based on Geiger’s parole violation, among other reasons, Gordon also filed a separate motion to modify custody, which requested sole legal and physical custody, and removal of Geiger’s visitation.

At the following hearing on August 28, 2014, the district court stated it was inclined to interview the parties’ children, to which Geiger and pro se Gordon agreed. The district court then set an evidentiary hearing for October 9, 2014, to address Gordon’s request for an order to show cause and to particularly discern the reason for the issuance of Geiger’s warrant.

In September, the district court judge interviewed the minor children individually and off the record, with only the court clerk and court marshal present during the interviews.

At the October evidentiary hearing, the district court clarified that it set this hearing to hear from Geiger’s probation officer in order to understand why a warrant was issued for his arrest. Accordingly, Geiger’s probation officer took the stand and testified to the probation conditions Geiger allegedly violated and indicated that Gordon was not responsible for the issuance of Geiger’s warrant. On cross-examination, the probation officer testified that he did not have any proof that Geiger was aware of the changes to the terms of his probation.

Following the probation officer’s testimony, Gordon took the stand. The district court recognized Gordon’s pending motion to modify custody, but clarified that she could testify in a limited capacity as to her interaction with Geiger’s probation officer, which she did. Geiger’s counsel further acknowledged that Gordon was testifying to this limited issue. The district court then addressed Geiger’s child support arrears, and Geiger took the stand to testify about financial matters.

Following Geiger’s testimony concerning child support, the court made its ruling and denied Gordon’s motion for sole legal custody, finding that Geiger did not know that he violated the terms of his probation and lacked notice of his warrant. Although the district court had already announced its decision, it allowed closing arguments. After arguments by the parties, the court made additional rulings concerning the parties’ failure to communicate and the minor child’s participation in a traveling band.

The judge then addressed the unrecorded interview she conducted with the parties’ children. According to the judge, the youngest child was not as forthcoming in his interview. However, the eldest child revealed that he liked the current custody schedule, and thus, the court found that he was not distressed by the arrangement. Then the judge informed the parties that the eldest child also told her that Gordon’s boyfriend would punch him as a form of discipline. Despite Gordon’s denial of this allegation, the judge stated that she believed the child’s testimony due to his detailed narrative. The court also based its ruling on an unsubstantiated CPS report, which was not authenticated by a CPS agent, admitted into evidence, or provided to the parties. In response, Geiger’s counsel asked the court to consider issuing an order to protect the children from Gordon’s boyfriend. The court granted the request and also ordered the parties to take classes concerning appropriate child discipline.

As the evidentiary hearing came to a conclusion, Geiger’s counsel orally requested expansion of Geiger’s visitation, despite the fact that he never previously requested custody modification in writing or otherwise. Geiger’s counsel also stated that even a temporary time-share change until the parties completed the discipline classes would suffice. The court declined counsel’s request and instead sua sponte ordered a permanent change in the parties’ visitation schedule. Although Gordon retained physical custody during the week, the court expanded Geiger’s visitation schedule to the first four weekends of each month and awarded Gordon every fifth weekend of the month where applicable. The court further ruled that Gordon could plan a maximum of four weekend trips a year with the children if she gave Geiger sufficient notice. Thus, the district court ultimately decreased Gordon’s weekend custodial time with the children to a maximum of eight weekends per year and increased Geiger’s visitation to the remaining weekends. The district court based its order on the unrecorded child interviews and the unsubstantiated CPS report. The evidentiary hearing concluded immediately following the court’s sua sponte order. The district court subsequently entered a written order reflecting the new visitation schedule.

In response to the district court’s order, Gordon filed a motion for reconsideration, a new trial, or to amend or set aside a judgment, which the district court denied. Gordon appealed the district court’s order.

Gordon argued that the district court erred when it sua sponte ordered a permanent increase in Geiger’s visitation and a reduction of her custodial time. In particular, Gordon argued that this sua sponte order violated not only her due process rights, but also violated statutory law.

The Court explained that a permanent change to Geiger’s visitation affected Gordon’s fundamental right concerning the custody of their children. Gordon never received notice that Geiger would be requesting increased visitation at the evidentiary hearing, and she was not afforded the opportunity to be heard and rebut the evidence upon which the district court relied. Therefore, the Court determined that the district court’s sua sponte order, which in effect granted Geiger’s oral request for a change in visitation at the evidentiary hearing, violated due process. The Court also found that the district court’s findings were not supported by substantial evidence due to the fact that the court relied upon the unrecorded child interviews and the unsubstantiated CPS report, neither of which were admitted into evidence.

The Court went on to examine the unrecorded interview the district court conducted with the parties’ children.

In 2003, Nevada adopted the Uniform Child Witness Testimony by Alternative Means Act (the Act), set forth in NRS 50.500 to 50.620. NRS 50.500. Instead of requiring a child witness to testify in open court, the Act provides an alternative method for the child witness. See NRS 50.520. In addition to criminal proceedings, the Act also applies in noncriminal proceedings, which includes family law proceedings. NRS 50.560(1).

The Court explained that although the Act sets forth standards and procedures for determining when to allow a child to testify by alternative methods, it does not preclude an applicable state rule or law that permits another procedure for the district court to take testimony of a child by an alternative method. See NRS 50.560(2)(a). At the time the district court interviewed the children in this case, an Eighth Judicial District Court Rule addressed judicially conducted child interviews. EDCR 5.06 provided in pertinent part: “In exceptional cases, the judge, master or commissioner may interview minor children in chambers outside the presence of counsel and the parties.” But, the record on appeal was void of any findings stating that this case was exceptional. Rather, the district court judge stated that she was inclined to interview the children for a second time and that she would “talk to the children and see what’s going on with them.” Therefore, the Court determined that EDCR 5.06 did not apply to the case at hand and, thus, did not supersede the Act. The Court further explained that EDCR 5.06 was in effect at the time of the parties’ hearings and at the time the district court judge interviewed the children. However, the rule was repealed effective January 27, 2017. In re Proposed Amendments to Part V of the Rules of Practice for the Eighth Judicial District Court, ADKT 0512 (Order Amending the Rules of Practice for the Eighth Judicial District Court Part V, Dec. 28, 2016).

The Court indicated that child interviews must be recorded and must abide by the Act. Further, the Court provided family law judges with the following guidance in interviewing child witnesses in the noncriminal proceedings over which they preside.

Under the Act, a judge may sua sponte order a hearing in determining whether a child witness should be allowed to testify by an alternative method. NRS 50.570(1)(a); see also NRS 1.428 (defining “judge”). However, a court must order a hearing if a party makes a motion and shows good cause. NRS 50.570(1)(b). Regardless of whether a hearing is ordered sua sponte or after a party shows good cause, the parties must be reasonably notified of the hearing, and the hearing must be recorded. NRS 50.570(2).

The Court further explained that a family court judge may allow a child witness to testify by an alternative method upon finding by a preponderance of the evidence that such allowance “is necessary to serve the best interests of the child or enable the child to communicate with the finder of fact.” NRS 50.580(2). In making this necessary finding, the judge must make relevant considerations as statutorily proscribed. See NRS 50.580(2)(a)-(e). If the judge makes a satisfactory finding, he or she must consider additional statutory factors to determine whether a child should be allowed to testify by an alternative method. See NRS 50.590(1)-(7). The judge must then support his or her determination by stating the findings of fact and conclusions of law in an order. NRS 50.600(1). The order also must specify certain conditions under which the testimony by an alternative method is to be presented. See NRS 50.600(2)(a)-(e). Notably, the judge’s order “may be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order.” NRS 50.600(3). The Act also sets forth constitutional safeguards. In conducting the alternative method of obtaining child witness testimony, the district court must afford each party with a full and fair opportunity to examine or cross-examine the child witness. NRS 50.610.

Thus, the Court found that the district court erred by disregarding NRS 50.500 et seq., when it decided to interview the children off the record. The Court held that a court is required to follow the Act’s provisions set forth in NRS 50.500 et seq. The Court determined that although Gordon’s acquiescence to the court’s interviews of the children may have waived the requirement for a hearing under NRS 50.570, it did not constitute a complete waiver of the Act’s provisions, including the court’s obligation to set forth the parameters of the alternative method in an order pursuant to NRS 50.600 or the parties’ rights for a full and fair opportunity to examine or cross-examine the child witnesses under NRS 50.610.

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