In Georgia divorce actions and other proceedings involving custody of minors, judges at times will interview children in chambers and then partly base their final custody decisions on the information obtained during those consultations. The parties or their counsel do not often witness those interviews, and the discussions are not always transcribed by court reporters. Is either procedure required though? This article explores the requisites for judicial interviews of minor children and for proper consideration of their statements in making final custody determinations.
A Georgia rule of court expressly permits judges to interview minor children in custody proceedings, as follows in relevant part:
… When custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court. At any such consultation, attorneys for both parties may be in attendance but shall not interrogate such child/children except by express permission from the court. Upon request, the proceedings in chambers shall be recorded.(1)
Because longstanding Georgia law precludes a trial court – in reaching judgment on child custody – from relying on evidence that was not available to the parties or their counsel, the law likewise precludes a court from basing a final custody decision (even in part) on information obtained from an interview of a minor, unless the evidence obtained from the interview was made available to the parties or their counsel.(2) If a court reporter transcribed a consultation which occurred without parties or counsel present, the judge – before making a final custody decision – must make the transcript available to both sides and give them the opportunity to review, explain, or rebut the information shared by the child.(3) Presumably too, where an interview occurs in the presence of the parties or their counsel, and where the parties have an opportunity to be heard regarding the substance of the consultation, a court can rely on the information obtained from the interview whether or not a transcript exists and was provided to both sides.
It remains unclear whether the above rules apply to an unrecorded interview, outside the presence of the parties and their counsel, when neither party requested transcription of the interview. The Georgia Court of Appeals’ most recent decision on the issue could suggest such application, however. That decision concerned a judge’s interview of a child in chambers in a divorce action, with only a court reporter present. When one party subsequently moved to review the transcript of the interview, the court denied the motion because the court reporter had lost her recording of the proceeding and thus could not transcribe it. The court nonetheless based its final custody decision in part on information obtained during the consultation, and the Court of Appeals reversed due to the judge’s improper reliance on evidence not available to the parties.(4) Although the reviewing Court never stated whether either party had requested that the interview be recorded, its focus on the unavailability of the evidence to the parties seemingly places the onus on a trial court to forego using consultation evidence unless it has made that evidence available to the parties or their counsel.
(1) U.S.C.R. 24.5(B). (2) Altman v. Altman, 301 Ga. 211, 800 S.E.2d 288, 291-292(2) (2017); Osgood v. Dent, 167 Ga. App. 406, 409-11(2), 306 S.E.2d 698 (1983); Kohler v. Kromer, 234 Ga. 117, 118-19, 214 S.E.2d 551 (1975); Peeples v. Newman, 209 Ga. 53, 57, 70 S.E.2d 749 (1952); Kilgore v. Tiller, 194 Ga. 527, 528-29, 22 S.E.2d 150 (1942); and Spruell v. Spruell, A20A1007 (4) (Ga. Ct. App., September 18, 2020). (3) Altman, supra, 800 S.E.2d at 292(2). (4) Spruell, supra.