Ynclan v. The Honorable Paul K. Woodward

• Decision Date: 25 March 2010
• Docket Number: No. 107,478.,107,478.
• Parties: Noah Shawn YNCLAN, Petitioner, v. The Honorable Paul K. WOODWARD, Special District Judge, Respondent.
• Court: Oklahoma Supreme Court

237 P.3d 145

2010 OK 29

Noah Shawn YNCLAN, Petitioner,

v.The Honorable Paul K. WOODWARD, Special District Judge, Respondent.

No. 107,478.

Supreme Court of Oklahoma.

March 23, 2010.

As Corrected March 25, 2010.

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRIT OF MANDAMUS; The Honorable Paul K. Woodward, Trial Judge.

¶ 0 The mother filed for a divorce in Garfield County. In an effort to determine custody of the couple's four children, the trial judge privately interviewed three of the older children in camera-neither the parents nor their counsel were present. A court reporter was present and questions were allowed to be submitted by counsel. The trial court granted the divorce and awarded custody to the mother, and the father subsequently requested transcripts of the children's testimony which was denied by the trial court. The father seeks relief in this Court. This opinion sets forth the guidelines for trial courts to conduct in camera interviews of children in child custody/visitation disputes and holds that unless one or both of the parties appeal the custody/visitation determination, due process does not require that either parent have access to the transcript of the in camera interview of the children merely to satisfy their own curiosity. Oklahoma Supreme Court Rule 1.33, 12 O.S.2001 Ch. 15, App. 1 is amended to reflect today's pronouncement. Original jurisdiction is assumed and the writ of mandamus is denied.

ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF MANDAMUS DENIED; OKLAHOMA SUPREME COURT RULE 1.33 AMENDED.

William B. Maxwell, Enid, OK, for Petitioner.

Michael D. Roberts, Enid, OK, for Respondent.

KAUGER, J.:

¶ 1 This is a case of first impression. We have never determined under what circumstances and conditions a trial court may: 1) conduct in camera ¹ interviews of children who are the subject of child custody and/or visitation proceedings; ² and 2) provide the transcript of the proceedings to the parents after the private in camera interview occurs. Consequently, we assume original jurisdiction to address these questions, and to delineate the guidelines for trial courts to follow when conducting an in camera interview of children in custody/visitation matters. We also hold that unless one party or both parties appeal the custody determination, due process does not require that either parent have access to the transcript of the in camera interview of the children merely to satisfy their own curiosity. Oklahoma Supreme Court Rule 1.33, 12 O.S.2001 Ch. 1, App. 1, is amended to conform with today's holding.

FACTS

¶ 2 Because the matter is presented as a request to assume original jurisdiction and to issue a writ of mandamus, the facts in the record are relatively sparse. It appears that Nancy Ynclan (the mother) and Nolan Shawn Ynclan (the petitioner/father) were married on Valentine's Day 1996. The couple had four children born in 1996, 1997, 1999, and 2004, and on February 27, 2008, the mother filed for divorce from the father in Garfield County District Court.

¶ 3 The matter proceeded to trial on January 14 and January 30, 2009. On the second day of trial, the trial judge interviewed the three oldest children, in chambers, without counsel or the parents being present. However, a court reporter was present to take notes. The three interviews lasted less than fifteen minutes. The mother insists that counsel for both sides agreed not to be present in the interview, but that written questions were submitted. According to the father, after the interview, he promptly made an informal request for the transcript of the children's interviews and tendered his cost deposit. This request was denied and at the conclusion of the trial, the court granted the divorce and awarded the mother custody of the children.

¶ 4 On February 13, 2009, the father made a formal request to the court to review the transcript of the children's testimony. The court held a hearing on March 2, 2009, and denied the father's request for the transcript. The divorce decree was filed on April 6, 2009. According to the mother, the trial court indicated that the transcript could be made available for purposes of appeal, but the father did not appeal from the divorce decree. On August 27, 2009, the trial court filed a written order reflecting its decision on March 2, 2009, denying the father review of the transcript. On August 28, 2009, the father filed an application and brief for mandamus in this Court, seeking an order which would direct the trial court to allow him access to the transcript. (No transcript has been made available to this Court for review.)

¶ 5 We assume original jurisdiction to delineate the proper procedure for a trial court to follow when considering an in camera interview in the context of child custody and/or visitation disputes. Under the facts presented, we also deny the writ of mandamus.

I.

GUIDELINES FOR CONDUCTING IN CAMERA INTERVIEWS IN CHILD CUSTODY/VISITATION DISPUTES PURSUANT TO 43 O.S. Supp.2002 § 113.

¶ 6 The father argues that 20 O.S. Supp.2007 § 106.4(A) and 43 O.S. Supp.2002 § 113(C), taken collectively, require that in camera interviews of children in custody proceedings be transcribed and that the statutes also require the trial court to allow the parents to review such transcripts. In other words, he alleges that the transcripts may not be sealed from either the parties or their attorneys.

¶ 7 Title 20 O.S. Supp.2007 § 106.4(A), governs the duties of court reporters and it provides in pertinent part:

... A refusal of the court to permit or to require any statement to be taken down by the court reporter or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, or other appellate court, shall constitute a denial of due process of law.... ³ We have held that when the trial court denies a timely request for reporting the statements of counsel and the court in a judicial proceeding, due process is denied. ⁴ We have also indicated that the right to complain of this type of denial of due process may be waived. ⁵ However, we have not addressed the application of this statute in the context of parental access to in camera transcripts.

¶ 8 Title 43 O.S. Supp.2002 § 113(C), governs a trial court's ability to consider the preference of children in custody and/or visitation disputes, and it provides in pertinent part:

... C. If the child expresses a preference or gives testimony, such preference or testimony may be taken by the court in chambers without the parents or other parties present. If attorneys are not allowed to be present, the court shall state, for the record, the reasons for their exclusion. At the request of either party, a record shall be made of any such proceeding in chambers.... ⁶

¶ 9 The mother does not address § 106.4, but, instead, argues that the father is attempting to add requirements into § 113 which do not exist. She also contends that we should not assume original jurisdiction in this cause because the father could have appealed the final divorce decree and raised the issue of his denial of access to transcript at that time. Neither party addresses the applicability, if any, of Oklahoma Supreme Court Rule 1.33(e), 12 O.S.2001 Ch. 15, App. 1, which governs the access to transcripts on appeal. It provides:

(e) Access to the Record by Parties or Counsel.

Until a uniform rule of procedure has been promulgated by this court, the parties shall have access to the transcript and to the bound instruments on file in the trial court on such terms as that court may impose. ⁷

¶ 10 Neither the statutes nor the rule expressly require the father to be provided with a transcript. We recognize that the mother is correct that the father could have appealed the divorce decree and raised his denial of access to the transcript argument. Nevertheless, because this issue is a matter of public interest, at least to the extent that it could potentially be raised in every divorce case in which custody or visitation of children is disputed, we assume original jurisdiction and address the procedure for conducting such interviews and whether, or in what circumstances, a parent should be entitled to access to such transcripts after the interview. Because the issue is a common occurrence in our courts, we have conducted an extensive review of sister states for guidance in constructing this procedure.

¶ 11 The procedure of a trial judge conducting a private, in camera interview with a child, depending upon age and maturity, has been widely used as a means of discovering the child's custodial preference. ⁸ The purposes of conducting an interview in private, rather than in open court in the presence of the parents include:

1) elimination of the harm a child might suffer from exposure to examination and cross-examination and the adversarial nature of the proceedings generally; ⁹

2) reduction of added pressure to a child to an already stressful situation; ¹⁰ 3) enhancement of the child's ability to be forthcoming; ¹¹

4) reduction of the child's feeling of disloyalty toward a parent ¹² or to openly choose sides; ¹³

5) minimization of the emotional trauma affecting the child, ¹⁴ by lessening the ordeal for the child; ¹⁵

6) protection of the child from the tug and pull of competing custodial interests; ¹⁶ and

7) awarding custody without placing the child in an adverse position between the parents. ¹⁷

¶ 12 Obviously, the purpose of such a hearing is not to lessen the ordeal for the parents, but, rather, to lessen the ordeal for the child. Nor is it intended to make a secret of the basis for the court's findings. ¹⁸ The preference of the child is only one of many factors to be considered when determining the child's best interest concerning custody. ¹⁹ It should never be the only basis for determining custody. ²⁰ Nor should a child be directly asked where the child would rather live...