TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 13, 2011
RE: Rule 8.13, N.D.R.Ct., In Chambers Interview of Child in Domestic Relations Case
Rule 8.13 came before the Committee at the September 2010 meeting. It is a new rule that is designed to establish a uniform procedure for in chambers interviews of children. The Committee discussed the rule proposal at length during the September meeting and instructed staff to revise it for further consideration at this meeting.
Staff has worked to streamline the rule, retaining the provisions favored by the Committee. Subdivision (a) of the rule requires parental consent for the in chambers interview, subdivision (b) provides for the presence of counsel, subdivision (c) requires the interview to be recorded and subdivision (d) limits access to interview records.
Some Committee members had asked whether the court could close the courtroom while a child testifies in a family law proceeding, with access to the testimony limited to counsel, parents and court staff. N.D.R.Civ.P. 43, which requires the testimony of witnesses to be taken in open court, seems to bar this.
Committee member Joanne Ottmar gathered some comments from family law attorneys on the proposed rule. These comments are attached. In general, the comments indicate that attorneys favor adopting a rule to provide uniformity and guidelines for judges. Two of the comments expressed concern about requiring consent from the parents for an interview.
The Committee asked staff to research whether any other states have established an in chambers interview rule. Staff located several, which are attached for the Committee's review: Ariz. Fam. Law Proc. R. 12; N.J. Court Rule 5:8-6; Va. Code Ann. Sec. 20-124.2:1; and W.Va. Child Abuse and Neglect Rule 8.
Two cases are attached that the Committee may wish to review. In Muraskin v. Muraskin, 336 N.W.2d 332 (N.D. 1983), the trial court conducted an in chambers interview without the consent of the one of the parents. The trial court promised the children that the interview would be kept confidential. Because it did not want to break the confidentiality promise, the Supreme Court decided it could not consider the content of the interview and it ended up reversing the trial court's decision.
In C.E.T. v. K.M.T., 880 So.2d 466 (Ala. Civ. App. 2003), the trial court conducted an in chambers interview over the objection of one parent, without counsel present and without recording the interview. The appellate court held this violated due process based on Ex Parte Berryhill, 410 So. 2d 416 (Ala. 1982). The Berryhill court had decided that Rule 43 barred private interviews with children absent consent of the parties. The Berryhill court also suggested that participation by counsel and the right of cross-examination was an important part of an in chambers interview.
The case law and the rules from other states seem to identify some of basic features of a proper in chambers interview: parental consent, participation at some level by counsel, recording of the interview, and limited access to the interview record. These features have been integrated in the Rule 8.13 proposal, which is attached.