The short answer is yes, children can have a voice, but they will not be given a choice in who they will live with. In other words, the child’s preference can be a factor in the decision, but it won’t be the only factor. There are rules as to how that takes place.
Although the Nevada courts do all they can to shield children from the custody battle of the parents, there are times when the children’s input is welcomed. Much of it has to do with the age and maturity of the child and whether they can form an “intelligent preference.” This is a factual determination to be made by the judge, but the judge will take input from the attorneys or the parties in coming to an initial decision whether or not to interview the child.
Historically, each judge approached child interviews differently. In Southern Nevada, where we have the Family Mediation Center (“FMC”) with people trained to do child interviews, some judges send the child directly to the FMC to be interviewed, sometimes without the request of either of the parents. Other judges, upon the request of one of the parties, will interview the child themselves, and a few will put them on the stand like any other witness (though often after asking the parents to leave the room).
Until recently, each court decided their own procedures and prohibitions for child interviews, which led to a widely varied experience for the children. Unless the child was put on the stand and questioned by the attorneys, the interviewer or judge would sit with the child, typically alone, and ask a host of questions, ranging from descriptions about what they experience at home, to how they do in school, to whether or not a parent has told them to say specific things. If the interview was done at the FMC, the interviewer will write a report to the judge. Some of those reports analyzed and interpreted the statements and included references to non-verbal cues, while others simply stated what the child “said” without any context or interpretation. As a result, the reports varied significantly in their usefulness.
In an effort address the disparate approaches, the Nevada Supreme Court recently adopted Nevada Rule of Civil Procedure 16.215 which now controls the standards for child witness interviews. Although it leaves significant discretion in the trial court as to how to conduct those interviews, it standardized the general approaches and the alternative means and methods of the interviews. Alternate methods give the courts the ability to choose between certain options, such as asking the attorneys and parties to view the interview electronically, or to exclude them altogether if the child’s interest require.
The process now begins by making an initial identification and disclosure of the child witness before the Case Management Conference, or afterward through the filing of a Notice of Child witness. This puts the court and the opposing side on notice of the desire for the interview. The assumption will be that the child will testify on the stand, unless the party requesting the interview files a Motion to Permit Child Testimony Through Alternate Means. The Alternate Means allowed are now described in the Rule, and consist of three options depending upon the circumstances in the case:
- In the event all parties are represented by counsel, the court may (i) interview the child witness outside of the presence of the parties, with the parties’ counsel present, or (ii) allow the parties’ counsel to question the child witness in the presence of the court without the parties present;
- In the event all parties are represented by counsel, the court may interview the child witness outside of the presence of the parties, with the parties’ counsel simultaneously viewing the interview via an electronic method;
- Regardless of whether the parties are represented by counsel, the court may interview the child witness with no parties present, but may allow the parties to simultaneously view the interview via an electronic method if the court determines that the viewing is not contrary to the child’s best interests; and
- The court may have the child witness interviewed by a third-party outsource provider.
In deciding which of these options should be used, the court is instructed to balance the needs of the child against the rights of the parents to be present in the courtroom. The courts are admonished to try to create an environment in which the child can be open and honest, yet preserve the ability of the attorneys to cross-examine or otherwise question some of the statements. But ultimately, the best interests of the child are paramount.
Once the interviews are completed, the court will allow any party to review the recordings unless the court finds by clear and convincing evidence that such a review would pose a risk of substantial harm to the child. This balances a party’s constitutional “due process” rights against the needs of the child to be protected from harm. It also gives the court the ability to gain and assess the honest testimony of the child by assuring the child they will be protected.
In practical terms, such interviews are typically found to be useful only to the extent the child has not been subjected to significant alienation, coaching, or threats of harm by a controlling parent. As age and personal independence (i.e. lack of enmeshment with a parent) increases, so will the child’s ability to “form an intelligent preference” as to where they will live. Generally, speaking, the younger the child, the less likely the court will be to order the interview. Children under 12 are rarely interviewed.
So while the answer to the question is “yes,” it comes with a big caveat: it depends upon the age and maturity of the child, and it depends upon how the judge will approach the interview.