Custody disputes are often traumatic and stressful for the children caught in the middle. Even when the parents disagree as to custody and visitation arrangements, they still have an understandable desire to minimize their child’s exposure to the legal system. But does this mean the court–i.e., the judge–talk to the child about the case without the parents’ permission?

As the Maryland Court of Special Appeals observed in a recent decision, M.Y. v. L.G., the longstanding rule in this state is that a trial judge does have the discretion to “interview a child in a custody case even without the consent of the parties or the presence of counsel.” But the interview with the child must still be recorded by a court reporter and the contents of that in camera (in private) discussion must be immediately disclosed to the parents afterwards. This is necessary to prevent any “unfair surprise” that could violate the due process rights of either parent.

Court of Special Appeals Upholds Custody Order Despite Trial Judge’s Violation of Due Process

The M.Y. case actually involved a scenario in which the Court of Special Appeals concluded that the trial judge did not follow these rules. In this case–a custody dispute between a mother and father–the trial judge announced she planned to interview the child in camera without the presence of either parent or counsel, and without a court reporter present. The judge explained she wanted to have a “frank discussion” with the child and any recording would hinder that objective. Afterwards, the judge “summarized” the conversation for the parents but did not provide a “word for word” transcript.

The judge ended up having two off-the-record conversations with the child. The Court of Special Appeals said this was a mistake. The mother objected to both interviews, and she did not waive her right to have the conversation recorded.

The trial judge ultimately ruled against the mother in the custody dispute. Did the judge’s failure to record the interviews with the child affect this outcome? The Court of Special Appeals said it did not. Although the judge acted in error, the appellate court said the mother “cannot argue that she suffered unfair surprise when the trial court summarized the interview with the minor child and used the contents of the interview to assist in her decision.”

Indeed, the substance of what the child told the judge–she felt unsafe with the mother and would be happier living with her father–was already known to the mother based on other evidence produced during the trial. The fact the judge’s interview was not recorded “did not prevent Mother” from addressing the child’s already known preferences and feelings on the subject.

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This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 870-1200.