237 P.3d 145 2010 OK 29

2010 OK 29

Noah Shawn YNCLAN, Petitioner, v. The Honorable Paul K. WOODWARD, Special District Judge, Respondent.

No. 107,478.

Supreme Court of Oklahoma.

March 23, 2010.

As Corrected March 25, 2010.

*147William B. Maxwell, Enid, OK, for Petitioner.

Michael D. Roberts, Enid, OK, for Respondent.

KAUGER, J.;:

[1 This is a case of first impression. We have never determined under what cireum-stances and conditions a trial court may: 1) conduct in camera1 interviews of children who are the subject of child custody and/or visitation proceedings;2 and 2) provide the transcript of the proceedings to the parents after the private in camera interview occurs. Consequently, we assume original jurisdiction to address these questions, and to delineate the guidelines for trial courts to follow when conducting an in camera interview of children in custody/visitation matters. We also hold that unless one party or both parties appeal the custody determination, due process does not require that either parent have access to the transcript of the in camera interview of the children merely to satisfy their own curiosity. Oklahoma Supreme Court Rule 1.88, 12 0.98.2001 Ch. 1, App. 1, is amended to conform with today's holding.

FACTS

12 Because the matter is presented as a request to assume original jurisdiction and to issue a writ of mandamus, the facts in the record are relatively sparse. It appears that Naney Y¥nclan (the mother) and Nolan Shawn Ynclan (the petitioner/father) were married on Valentine's Day 1996. The couple had four children born in 1996, 1997, 1999, and 2004, and on February 27, 2008, the mother filed for divorce from the father in Garfield County District Court.

1 3 The matter proceeded to trial on January 14 and January 30, 2009. On the second day of trial, the trial judge interviewed the three oldest children, in chambers, without counsel or the parents being present. However, a court reporter was present to take notes. The three interviews lasted less than fifteen minutes. The mother insists that counsel for both sides agreed not to be present in the interview, but that written questions were submitted. According to the father, after the interview, he promptly made an informal request for the transcript of the children's interviews and tendered his cost *148deposit. This request was denied and at the conclusion of the trial, the court granted the divorce and awarded the mother custody of the children.

T4 On February 13, 2009, the father made a formal request to the court to review the transeript of the children's testimony. The court held a hearing on March 2, 2009, and denied the father's request for the transcript. The divorce decree was filed on April 6, 2009. According to the mother, the trial court indicated that the transcript could be made available for purposes of appeal, but the father did not appeal from the divorcee decree. On August 27, 2009, the trial court filed a written order reflecting its decision on March 2, 2009, denying the father review of the tran-seript. On August 28, 2009, the father filed an application and brief for mandamus in this Court, seeking an order which would direct the trial court to allow him access to the transeript. (No transcript has been made available to this Court for review.)

15 We assume original jurisdiction to delineate the proper procedure for a trial court to follow when considering an in camera interview in the context of child custody and/or visitation disputes. Under the facts presented, we also deny the writ of mandamus.

I.

GUIDELINES FOR CONDUCTING IN CAMERA INTERVIEWS IN CHILD CUSTODY/VISITATION - DISPUTES PURSUANT TO 43 O.S. Supp.2002 § 113.

T6 The father argues that 20 0.8. Supp. 2007 § 106.4(A) and 48 O.8. Supp.2002 § 113(C), taken collectively, require that in camera interviews of children in custody proceedings be transcribed and that the statutes also require the trial court to allow the parents to review such transcripts. In other words, he alleges that the transcripts may not be sealed from either the parties or their attorneys.

1 7 Title 20 0.8. Supp.2007 § 106.4(A), governs the duties of court reporters and it provides in pertinent part:

... A refusal of the court to permit or to require any statement to be taken down by the court reporter or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, or other appellate court, shall constitute a denial of due process of law . .. .3

*149We have held that when the trial court denies a timely request for reporting the statements of counsel and the court in a judicial proceeding, due process is denied.4 We have also indicated that the right to complain of this type of denial of due process may be waived.5 However, we have not addressed the application of this statute in the context of parental access to in camera transeripts.

T8 Title 48 0.8. Supp.2002 $ 113(C), governs a trial court's ability to consider the preference of children in custody and/or visitation disputes, and it provides in pertinent part:

. C. If the child expresses a preference or gives testimony, such preference or testimony may be taken by the court in chambers without the parents or other parties present. If attorneys are not allowed to be present, the court shall state, for the record, the reasons for their exelusion. At the request of either party, a record shall be made of any such proceeding in chambers....6

[1] 99 The mother does not address § 106.4, but, instead, argues that the father is attempting to add requirements into $ 118 which do not exist. She also contends that we should not assume original jurisdiction in this cause because the father could have appealed the final divorce decree and raised the issue of his denial of access to transeript at that time. Neither party addresses the applicability, if any, of Oklahoma Supreme Court Rule 1.33(e), 12 0.98.2001 Ch. 15, App. *1501, which governs the access to transeripts on appeal. It provides:

(e) Access to the Record by Parties or Counsel.
Until a uniform rule of procedure has been promulgated by this court, the parties shall have access to the transcript and to the bound instruments on file in the trial court on such terms as that court may impose.7

[ 10 Neither the statutes nor the rule expressly require the father to be provided with a transcript. We recognize that the mother is correct that the father could have appealed the divorcee decree and raised his denial of access to the transcript argument. Nevertheless, because this issue is a matter of public interest, at least to the extent that it could potentially be raised in every divorce case in which custody or visitation of children is disputed, we assume original jurisdiction and address the procedure for conducting such interviews and whether, or in what circumstances, a parent should be entitled to access to such transcripts after the interview. Because the issue is a common occurrence in our courts, we have conducted an extensive review of sister states for guidance in constructing this procedure.

111 The procedure of a trial judge conducting a private, in camera interview with a child, depending upon age and maturity, has been. widely used as a means of discovering the child's custodial preference.8 The purposes of conducting an interview in private, rather than in open court in the presence of the parents include:

1) elimination of the harm a child might suffer from exposure to examination and cross-examination and the adversarial nature of the proceedings generally; 9
2) reduction of added pressure to a child to an already stressful situation; 10
*1513) enhancement of the child's ability to be forthcoming; 11
4) reduction of the child's feeling of disloyalty toward a parent 12 or to openly choose sides;13
5) minimization of the emotional trauma affecting the child,14 by lessening the ordeal for the child;15
6) protection of the child from the tug and pull of competing custodial interests;16 and
7) awarding custody without placing the child in an adverse position between the parents.17

112 Obviously, the purpose of such a hearing is not to lessen the ordeal for the parents, but, rather, to lessen the ordeal for the child. Nor is it intended to make a secret of the basis for the court's findings.18 The preference of the child is only one of many factors to be considered when determining the child's best interest concerning custody.19 It should never be the only basis for determining custody.20 Nor should a child be directly asked where the child would rather live because specifically asking preference provides an opportunity for parental manipulation or intimidation of the child as well as an opportunity for the child to manipulate the parents.21 It also gives the child *152the impression that their preference is "the" deciding factor for custody. Rather, the trial court should conduct such an interview so as to discern the child's preference, while at the same time, being sensitive to how the child is coping with the divorce, the pressures put on the child by the divorce and stating a preference, as well as to ascertain the motive of the child in stating a preference.22 When the trial court determines the child's best interest will be served by considering the child's preference, whether to hold such an interview is generally within the trial court's discretion.23

13 Because the interview is not held in open court, in the presence of the parents, courts have also recognized that such a procedure is contrary to the basic concepts of an adversarial system.24 For instance, in KES v. CAT, 2005 WY 29, 118, 107 P.3d 779 (2005), a case in which one parent objected to the child being interviewed by the trial court in private, the Supreme Court of Wyoming noted that: "the fundamental principal of Anglo-Saxon law that the decision must be based on evidence in open court lest the guaranty of due process be infringed." The flip side of the coin is that "the conviction of those trained in the social and medical sciences that the informal procedure of obtaining the infant's preference, outlook, and interest in the calm of the judge's chambers, away from the pressure of the parents, provides best for the welfare of the child and of *153society as a whole." 25 Undeniably, conducting such an interview raises due process and fundamental fairness issues, insofar as the parents are concerned.26 At conflict with the parents' basic due process rights is the child's right to be heard and to express a preference as to where he or she will live.27

1 14 The Wyoming Court also noted several due process implications which arise in custody litigation such as the parent's right to associate with and rear his or her child [a/k/a a "liberty interest" protected by the Fifth and Fourteenth Amendment to the Constitution of the United States], or to enjoy their children's companionship, and to direct upbringing. When an in camera interview is proposed, other implications also arise such as the right to be apprised of all the evidence upon which an issue is to be decided and the right to examine, explain or rebut such evidence including the right to hear or cross-examine witnesses. The Wyoming Court noted that when a judge interviews a child in private without the consent of a parent, the parent is deprived of due process inasmuch as he or she is unable to hear the evidence, and is not given an opportunity to explain or rebut statements made by the child.

1 15 Consequently, a balancing of parental due process rights with the child's right to be heard and the court's interest in hearing the child is obviously required. - Numerous courts have addressed the issue of how such an interview should be conducted, whether it should be recorded, and whether the parents should have access to the transcript to comport with due process implications.

116 In spite of the due process implications, in camera interviews are widely used as a means of discovering a child's custodial preference.28 In most cases, if the parents consent or agree to the interview, a trial court may hold an in camera custody preference interview without the parents.29 If a parent does not object to the procedure at *154the time of the interview, then any objection is generally waived on appeal.30 Even when consent is given, the courts usually protect the parents' due process rights by either allowing or requiring the parents' lawyers to be present during the interview or at least allowing the lawyers to either submit or ask questions, or both.31 However, if the parent is acting pro se, the pro se parent is excluded from the interview altogether.32

{17 Other various procedures have been developed, in attempts to resolve the conflict *155between the parental due process rights with the child's right to be heard. For instance, a number of states require, either by statute or judicial holding, that in camera conversations with children must be recorded.33 In other states, the presence of a court reporter can be waived,34 or the record must be made only if requested by the parties.35

118 Taken together, 20 O.S. Supp.2007 106.4(A) 36 and 48 O.S. Supp.2002 § 11837 con *156do not fully resolve the conflicts between the parental due process rights of having an in camera interview transeribed with the child's right to be heard. For instance, 48 O.S8. Supp.2002 § 113,38 does not expressly address parental consent to holding an in camera interview. What it does do is:

1) require the court to determine that the best interest of the child will be served by expressing preference;
2) generally give the trial court discretion to consider a child's preference unless if the child is of sufficient age, [presumably 12 or older], in which case the court is required to consider the expression of preference or other testimony;
3) expressly allow counsel to be present, but provides that if the lawyers are not allowed in the interview, the reasons for their exclusion must be expressly stated by the trial court;39
4) in no case is the child's preference binding on the court or the only factor the court should consider; 40
5) if the child is of sufficient age to form an intelligent preference, and the court does not follow the child's preference, the court shall make specific findings of fact supporting such action if requested by either party; 41 and
6) either party may also request that a transcript of the in chamber proceedings be made, but the statutes do not address whether or if the party is entitled to access of the transcript.42

119 In order to provide a proper balance of parental due process rights with the child's right to be heard, we hereby adopt the following guidelines for trial courts to utilize when planning to conduct an in camera custodial or visitation child preference interview:

1) If the trial court or the parties consider the possibility of an in camera interview of the children, then the trial court, pursuant to 43 0.8.2001 § 113, must make and state on the record its preliminary determinations concerning whether the child's best interest is served by conducting such an in comera interview and whether the child is of a sufficient age to form an intelligent preference;
2) If the parents consent to the interview being in chambers, or otherwise waive their own presence, the judge may proceed with an in camera interview.
8) If one or both parents object to being excluded, the trial court must consider whether the parents want counsel present. This consideration should include whether to allow counsel to be present, allow counsel to question the child, or allow counsel to submit questions to be asked. Whether the trial court allows the counsel to participate in the questioning or submit questions is within the trial court's discretion. If no objection is made regarding this issue, the parties waive objection to the issue on appeal. If the judge proceeds with an in camera interview without counsel present, pursuant to 48 0.8.2001 $ 113, the reason for counsel's exclusion must be stated on the record.
4) The next issue to be considered on the record is whether either or both parents request that a court reporter be present. If a request for a court reporter is made, the court reporter must be present and the interview shall be recorded-otherwise the parties waive objection to the issue on appeal.

120 Although we adopt these guidelines today, we realize that trial courts have not previously had a uniform procedure to follow. Nevertheless, following these guidelines will set forth the due process standards from which we will measure objections to or *157allegations concerning due process issues in custody/visitation cases in all future cases including those already in the appellate pipeline.43

IL.

UNLESS THE PARENTS OR A PARENT APPEALS THE CUSTODY/VISITATION DETERMINATION, DUE PROCESS DOES NOT REQUIRE THAT EITHER PARENT HAVE ACCESS TO THE TRANSCRIPT OF THE IN CAMERA INTERVIEW OF THE CHILDREN MERELY TO SATISFY CURIOSITY.

121 Onee a record is made, the question becomes whether it must be made available to the parties, and if so when? Again, the procedures vary from state to state. In some states, the record must be made available to the parties.44 In other words, the record may be sealed from the parties, but must be made available for appellate review in an effort to protect the children's confidentiality, while still providing a basis of appellate review to protect the parents' due process rights.45 Transcribing the matter and making it available to the court, but not to the parties, could satisfy the due process requirement stated in 20 O.S. Supp.2007 § 106.4(A).46 Rarely are the parties completely precluded from ever knowing what transpired in the interview.47

122 Our research reveals one New Jersey case directly on point, and we agree with its *158result. In Uherek v. Sathe, 391 N.J.Super. 164, 917 A.2d 806, 308 (2007), cert. denied by Uherek v. Uherek, 192 N.J. 72, 926 A.2d 856 (2007), the court addressed whether a father, nearly four years after dissolution of marriage, was entitled to transeripts of the trial judge's in camera interview with the parties' child. The New Jersey rule,48 like Oklahoma's statute 48 O.S. Supp.2002 § 113," allowed for transcripts to be provided to counsel and the parties upon the payment of costs. After considering the underpinnings of the trial judge's obligation to conduct such an interview balanced with the litigant's right to know, the court stated:

... it remains true that a litigant's attempt to learn what a child has expressed to the judge would, if honored, do little but invade the child's private communications and ought not be permitted absent a pending custody dispute.
The interview occurs in camera because the child is entitled to a degree of privacy which preserves, so far as possible, the child's "freedom of expression." Laveng, supra, 148 N.J. Super. at 272, 372 A.2d 629. To render such private statements more readily available than required by the demands of due process and R. 5:8-6, would tend to jeopardize the court's ability to gain a full and frank exposition of a child's preferences and views. Simple common sense suggests that children, who are put in the predicament of being asked their preferences in a custody battle, will more openly express their views outside the presence of their parents or their attorneys. In the interests of both gaining the best evidence available and protecting the child's right to privacy in such matters, the child should be free to speak openly. This is less likely to occur if the child's verbatim comments are readily available Of course, we recognize that R. 5:8-6 permits the release of such information when there is a pending custody proceeding. But, absent that circumstance, there is no existing basis for such a turnover, even to a parent, of the child's private communications and we find no reason to create such a right here. (Emphasis supplied.)

{23 Like the father in Uherek, supra, the petitioner here does not seek the transeript to rely on for an appeal of the custody dispute. In fact, no appeal has been lodged *159regarding custody. Rather, he seeks the transcript merely to satisfy his curiosity. We agree with the rationale utilized by the New Jersey court, and decline to create a right to transcripts pursuant to 48 0.8. Supp. 2002 $ 113 absent a pending custody dispute. Accordingly, we hold that unless a parent or the parents appeal the custody or visitation determination, due process does not require that either parent have access to the transcript of the in camera interview of the children merely to satisfy their curiosity.

IH.

OKLAHOMA SUPREME COURT RULE 1,33, 12 00.98.2001 Ch. 15, App. 1 IS HEREBY AMENDED TO ADDRESS ACCESS TO TRANSCRIPTS OF IN CAMERA PROCEEDINGS IN CHILD CUSTODY/VISITATION DISPUTES.

124 Today's holding necessitates that we add subsection (f) and amend Oklahoma Supreme Court Rule 1.33(e), 12 0.$8.2001 Ch. 15, App. 1 50 as follows:

(f) Access to the Record by Parties or Counsel in Custody/Visitation Disputes. When a parent intends to appeal a custody or visitation determination and the trial court has previously held an in camera interview with the child or children, and a transcript of the proceeding was taken either by order of the trial court or by request of the parties, the transcript shall be provided the parties upon request and payment of costs. If no appeal is taken, it is within the trial court's discretion whether to allow the parties access to the tran-seripts.

CONCLUSION

«[ 25 Neither 20 0.8. Supp.2007 § 106.4(A) nor 48 0.8. Supp.2002 § 113(C) 51 expressly requires that a parent be provided with a transcript of a trial court's in camera interview in a custody/visitation proceeding. When an in camera interview is proposed, due process implications arise and a balane-ing of parental due process rights with the child's right to be heard and the court's interest in hearing from the child is required. Because these statutes do not fully resolve this conflict, we have set forth the proper procedure for trial courts to utilize when conducting such interviews. If the proceeding is transcribed, the parties will be entitled to access to the transeript only if, a parent or the parents appeal the custody/visitation determination. Otherwise, whether the transcript remains sealed is within the trial court's discretion. Here, the father did hot appeal the award of custody, and he is not required to be given access to the transcript merely to satisfy his curiosity. Oklahoma Supreme Court Rule 1.33, 12 0.$8.2001 Ch. 15, App. 1 is amended to reflect our holding.

ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF MANDAMUS DENIED. OKLAHOMA SUPREME COURT RULE 1.33 AMENDED.

EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WINCHESTER, REIF, JJ. concur.

OPALA, COLBERT, JJ., concur in part and dissent in part.

WATT, J., dissents.

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 *160trials 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.

WATT, J.,

dissenting:

' 1 I dissent both from today's opinion and from the proposed rule change. Although the majority gives lip service to a plethora of reasons why an in camera interview serves the child's best interests, today, its opinion and proposed rule change may well sound the death knell to the utilization of this invaluable tool in future contested child custody matters. I also cannot agree with the immediate implementation of rule changes to causes in the appellate pipeline, altering the rules midstream in situations which involve the raw emotions of youth who have already been through the difficult rigors associated with placement proceedings.

T2 The opinion and rule change most certainly destroy the foundational principle for courts to conduct "in camera hearings" with the children which principle is also the basis for any custody decision, that being "the best interests of the child/children". Today's order not only robs the trial court of its discretion but also destroys the court's most vital tool in making decisions with regard to eusto-dy and that is obtaining the trust of the child or children. No longer can a judge promise that degree of protection of CONFIDENTIALITY so that a child will be more likely to be forthright and honest in expressing his or her views during these in camera proceedings.

38 I would adopt the rationale expressed in Myers v. Myers, 170 Ohio App.3d 486, 867 N.E.2d 848, where the court stated, as follows:

The requirement that the in camera interviews be recorded is designed to protect the due-process rights of the parents. The due-process protection is achieved in this context by sealing **856 the transeript of the in camera interview and making it available only to the court for review. This process allows appellate courts to review the in camera interview proceedings and ascertain their reasonableness, while still allowing the child to "feel safe and comfortable in expressing his opinions *161openly and honestly, without subjecting the child to any additional psychological trauma or loyalty conflicts."

[4 Accordingly, the sealing of the transcript and its inclusion in the record on appeal for review by the appellate courts in Oklahoma and using an abuse of discretion standard of review would protect the rights and best interests of the children while also affording the parents their right of due process.

15 By today's opinion and rule change, absent a complete waiver by all of the parties, "in camera hearings" as we have known them for decades will disappear.

T6 With today's pronouncement and rule change, either parent need only file their petition in error, pay the filing fee, and obtain and pay for a copy of the transeript and then be free to "beat the child/children over the head with it" for comments made to the judge in chambers. When there is no appeal, the proposed rule allows parents to request that the trial court release the tran-seript when no appeal is filed. No responsible parent would want access to hearing results unless they intended to, at some future date, use it against the child or a former spouse.

T7 Under today's order, thousands of children, at best, will leave the courthouses across this state with a bitter taste in their mouth for the judicial system or, at worst, result in mental or physical searring that will remain for the rest of their lifetime.

T8 Furthermore, instead of protecting the children and acting in their best interest, warring parents, consumed with bitterness for one another will now use their children as weapons in their domestic battle with the opposing spouse.

9 Finally, without any way to determine how many children will be affected by having their innermost thoughts revealed to warring parents, the majority imposes changes upon parents, children, and trial courts to which they had no notice when it makes the guidelines applicable "in all future cases including those already in the appellate pipeline." In the past, when rule changes have been imposed on the unsuspecting litigant, the rules have been made applicable in the cause and prospectively to all petitions for certiorari filed thirty (80) days after final publication in the Oklahoma Bar Journal.1

T 10 Accordingly, I dissent.

Ynclan v. Woodward
237 P.3d 145 2010 OK 29

Case Details

Name
Ynclan v. Woodward
Decision Date
Mar 23, 2010
Citations

237 P.3d 145

2010 OK 29

Jurisdiction
Oklahoma

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