“Why can’t the Judge just talk to my child?” Child Interviews in Divorce and Custody Litigation

“My child wants to live with me. Why can’t they come to court? Why can’t the judge just ask my child what they want?” It can be frustrating for parents whose children express a wish to be involved in litigation. One preliminary and extremely important thing for those parents to remember is that there is a specific rule on involving children in court proceedings, and that is Eighth Judicial District Court Rule 5.301, which states as follows:

All lawyers and litigants possessing knowledge of matters being heard by the family division are prohibited from:

(a) Discussing issues, proceedings, pleadings, or papers on file with the court with any minor child;

(b) Allowing any minor child to review any such proceedings, pleadings, or papers or the record of the proceedings before the court, whether in the form of transcripts, audio or video recordings, or otherwise;

(c) Leaving such materials in a place where it is likely or foreseeable that any minor child will access those materials; or

(d) Knowingly permitting any other person to do any of the things enumerated in this rule, without the written consent of the parties or the permission of the court.

Family court judges take this rule seriously, and litigants should as well. A parent can face serious consequences for violations of EDCR 5.301, even if their child is older, intellectually advanced, or curious about the court proceedings.

A child’s preference as to their living situation, however, is not irrelevant. Chapter 125C of the Nevada Revised Statutes governs child custody, and section 125C.0035(4) lists what are commonly referred to as the “best interest factors.” Litigants in matters involving child custody will likely hear reference to the “best interest factors” several times throughout the course of their case, from both the judge and (if applicable) their attorney. The factors are important, as they are the issues judges consider and weigh when making a custody or custodial timeshare decision.

There is a total of twelve “best interest factors” (though the list is not exhaustive and the judge is allowed to consider other issues as well), one of which is “[t]he wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her physical custody.”

First of all, what is the “sufficient age and capacity” for a child to “form an intelligent preference” as to custody? There is no easy answer to that question. It is up to the discretion of the judge whether to take a child’s wishes into consideration. There is a common misconception that once a child hits the age of 12 or 13, that child can “decide” where they want to live. This is untrue. If the judge decides the child is old enough and mature enough to express a preference, it is but one of many factors considered in the custody decision. Generally, judges begin to consider a child’s wishes around this age, but they are under no obligation to do so and it will vary between judges and cases based upon the unique circumstances of that case.

Let’s say the judge has agreed that your child is of sufficient age and capacity to express a custody preference – how can that preference be expressed to the judge? There is a fairly new procedure that must be followed, and is contained in Nevada Rule of Civil Procedure 16.215. Subsection (a) outlines the general guidelines:
When determining the scope of a child’s participation in custody proceedings, the court should find a balance between protecting the child, the statutory duty to consider the wishes of the child, and the probative value of the child’s input while ensuring to all parties their due process rights to challenge evidence relied upon by the court in making custody decisions.

Subsection (c) lays out the procedure. For a child interview, a party must disclose that they plan to have the child testify or be interviewed by a certain date and file certain associated pleadings.

If a parent does not want their child to have to testify under oath in a formal court hearing setting (which is true for most parents), they can ask that the testimony be taken by “alternative method.” NRCP 16.215(d)(1) states that an alternative method can take the form of the judge interviewing the child without the parents present with or without the parents’ attorneys in the courtroom, or interviewing the child in front of a camera that is live-streaming the video to the parents and/or attorneys. The judge can also elect to have the child interviewed by a “third-party outsource provider,” such as a therapist or an employee of the Family Mediation Center who are trained to do such interviews.

Along with the basics of how the child will express their preference, NRCP 16.215 requires the judge to consider several other questions as to whether the interview is the best thing for the child. The judge also must keep in mind that, regardless of the method used, both parents’ due process rights must be maintained. This means both parents, at a minimum, must have the opportunity to give the interviewer potential questions or subject areas for the interviewer to utilize during the interview. Child interviews should also be recorded. The parties can deviate from the requirements of NRCP 16.215 if they both agree to do so.

It can seem like common sense to do a child interview to determine a child’s custodial preference, but parents should demonstrate empathy towards their child and realize that children sometimes see an interview as being expected to “choose” one parent over another, which can cause them a great deal of stress.

As one can see, issues such as child interviews not only require a knowledge of the court system, but involve two different sets of rules and the Nevada Revised Statutes. Advice on such complicated matters should be obtained by a licensed and experienced attorney, who can advise litigants as to what they can expect based on their child’s age, their judge, and the procedural history of their case.

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