TOOL OF THE DAY: Interviewing a Child in Chambers
CATEGORY: Family Law
Can the judge interview my child in chambers? What if the family code statute says he can and my attorney says he can? Is there anything I can do to stop this?
Today, we are discussing whether or not this is allowed under the rules. You have constitutional protections and then you have federal and state rules. Most of the time the federal rules are set up to protect your constitutional rights. The state rules cannot violate your constitutional rights. And many times state rules are created from federal rules.
We are going to use the Texas Family Code statute as an example in this one. After you read how the Texas statute reads, then we will discuss whether this statute violates the rules and whether it appears to be unconstitutional.
Here is what the Family Code statute says in Texas:
Sec. 153.009. INTERVIEW OF CHILD IN CHAMBERS. (a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
(d) In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict.
(e) In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview.
(f) On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
What are some of the reasons this statute might be unconstitutional? Several reasons, it is being applied to divorcing parents and children differently than parents who are married. (See our second-class citizen arguments.) It is being applied without meeting proper thresholds before interfering with each parent’s right and child’s right to be free from government interference. It is interfering with the parent’s right to not have their privacy invaded. (See our book, “NOT in the Child’s Best Interest for your privacy rights in family law.) It is interfering with a child’s right to be protected by each of their parent’s from government interference.
Now let’s see if this Texas’ section on interviewing a child in chambers follows the federal and state codes and case law interpreting testimony of a child. (We just had this discussion again tonight in fact on the support call with Elaine Johnson-Cobb’s group. You can visit her group here where they have monthly support calls.) Let’s go over it again right now.
According to Texas objection rules, Objection 25 (p 698 of the Courtroom Handbook on Texas Evidence 2012) to be exact says that you “have a right to confront the witness face-to-face int he courtroom. The witness should not be permitted to testify via [closed-circuit television]…” And states that the authority to back this up is found in Maryland v. Craig (1990). This case says that a child is only allowed to testify via closed-circuit television (also use this for judge chambers) “only when the state makes an adequate showing of necessity.” And then there is a list of reasons they allow this. If you want to look up the reasons you can find them in Article 38.071 of the Code of Criminal Procedure. And don’t worry that doesn’t mean that this Objection only applies to criminal proceedings. Judges and attorneys will try to use that excuse all the time. That’s not always the measure for when something applies or doesn’t apply.
You have a combination of things that make this applicable to family law. One is if your rights are deprived to your time with your child, this is a punishment. Punishments in family law are quasi-criminal.
Second prong of this is that you have a right to confront the witness or accuser. Regardless of whether or not it is your child, if they are going to use something your child says to punish you, then the child is being used as an accuser. If the court has a problem with considering your child an accuser then they can refrain from using your child.
So the next objection this book lists is the Confrontation clause: hearsay objection. You have a right to confront. And the court is not allowed to enter hearsay. Plus if the court is going to use it for “testimonial” purposes then “the constitutional right of confrontation and cross-examiantion is absolute, and no showing of reliability, whether based on a “firmly rooted” exception of particularized indicia, can substitute.” In short, in other words, even if the hearsay is told to the judge and the judge considers himself reliable, that is not an exception. See Crawford v. Washington (2004) for more details on this.
RESULT: Busted! The Texas Family Code section 153.009 is unconstitutional and violates the federal and state rules regarding the confrontation clause and hearsay as interpreted by Maryland and Crawford!!!
In addition, we know a parent who used this argument that we have outlined here successfully. Naturally, the judge balked at it at first and said that in all his years he has never heard anyone use this in family court. The judge also commented that he thought it only applied in criminal cases. The parent however was able to get the judge to make a record of the child testimony so that it could be read and the parent could defend. The parent did not however get to cross-examine, so if the child had been younger the parent would have challenged this decision in the appellate courts.
If you want to read the act that originally added the Texas family code section you are reading above, you can refer to the end of the section where it reads “Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. This section tells you what Act added it and when it became effective. Then the information immediately following that is what Acts have amended it and when that took effect, like this: “Amended by Acts 1997, 75th Leg., ch. 781, Sec. 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1289, Sec. 2, eff. Sept. 1, 2001. Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 9, eff. June 18, 2005.
You can read each of those acts to see what changes were made each time to the original Act.
If you want to reform your family code. If you want to make additional changes to a section in your family code or any other sections in the laws in your state you would propose the changes as amendments to your legislators. If you want to add a new chapter or section to your laws in your state you would propose these as new chapters or sections to your legislators.
For additional information: (See what makes a statute constitutional in this blog post.)
You can learn more about how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]
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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
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