By Board Certified Las Vegas Divorce Attorney Vincent Mayo
“Can’t my child just testify to the judge away from everyone? I know what he has to say would be helpful, but I don’t want him to have to take the stand.” What family law practitioner has not heard this question from a distraught client in the midst of a child custody battle. While having a child “just testify to the judge” has a certain layman’s logic to it, limiting the circumstances under which a child gives testimony is a complex matter which pits the best interest of the child against the rules of evidence and the right to confront witnesses. Fortunately, in 2003, the State legislature provided Nevada family law practitioners a tool with which to navigate these competing policies in the form of the Uniform Child Witness Testimony by Alternative Methods Act.
The Alternative Methods Act
The Uniform Child Witness Testimony by Alternative Methods Act, or the “Alternative Methods Act,” is codified in Nevada as NRS 50.500 through 50.620. The Alternative Methods Act authorizes a court to consider whether to allow a child to testify outside the presence of a party or normal proceedings when to testify otherwise would impair the child’s testimony or subject the child witness to distress. NRS 50.550 and NRS 50.560.
Although the Alternative Methods Act expressly applies to both criminal and non-criminal proceedings, the Alternative Method Act was in fact promulgated by the National Conference of Commissioners on Uniform State Laws to specifically include and apply to family law and juvenile proceedings as well. See the National Conference of Commissioners on Uniform State Laws, Uniform Child Witness Testimony by Alternative Methods Act. However, the act does not apply to all children. In order for the Alternative Methods Act to apply to a specific case, a child must be under the age of 14. NRS 50.530.
Determining Whether to Allow Testimony by an Alternative Method
Once a party has determined that a child should testify in regard to a custody proceeding and the child’s testimony would best be elicited through an alternative method, a request that a child testify via an alternative method can be made through a motion. NRS 50.570(1). The hearing on such a motion is in the nature of a preliminary hearing or a motion in limine to determine only whether the testimony of the child should be taken by an alternative method.
In order to allow the child witness to testify by an alternative method, the court must find “by a preponderance of the evidence, that allowing the child to testify by an alternative method is necessary to serve the best interests of the child or enable the child to communicate with the finder of fact.” NRS 50.580(2). The court, in making its determination, is to consider (a) the nature of the proceeding; (b) the age and maturity of the child; (c) the relationship of the child to the parties in the proceeding; (d) the nature and degree of emotional trauma that the child may suffer in testifying; and (e) any other relevant factor. NRS 50.580(2).
A key factor to this analysis is determining what “degree of emotional trauma” warrants the use of alternative method. Because the Alternative Methods Act itself does not define this concept, other sources are helpful. Perhaps the most persuasive precedent is found in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990). In Maryland v. Craig, the U.S. Supreme Court stated that presenting testimony by an alternative method is necessary to protect the welfare of the child witness when the child would suffer serious emotional stress and be so traumatized to the extent the child could not reasonably be expected to communicate in the courtroom or the personal presence of a party. The Court went on to state that when a trial court is considering whether the child’s anticipated distress will be substantial, it should decide whether the trauma to the child is more than de minimis. 497 U.S. at 855-56. In essence, such trauma must be more than “mere nervousness or excitement or some reluctance to testify.” Id. at 855-56. See also Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).
During the initial hearing, a court is not bound by the rules of evidence in making its determination. Therefore, any number of exhibits can be used in support of or opposition to an alternative method request. NRS 50.570(2). A past child interview or evaluation can demonstrate a child’s level of maturity and the level of possible harm the child would suffer by testifying in open court. The report could show whether a child is articulate, withdrawn, confident, insecure, knowledgeable, honest, manipulative or frightened. Affidavits of individuals with information pertaining to the child might also be presented.
Academic performance is also helpful. Certificates of achievement for leadership, good attendance, timely turning in of homework, etc., are insightful and show intelligence and independence. In contrast, a teacher’s comments in a report card that a child is socially reclusive or overly-sensitive could warrant an alternative method. Participation in school sponsored clubs that promote leadership, academic success, school pride and community awareness are indicators of selflessness and maturity, and therefore that an alternative method is not required to protect the child.
During the initial hearing, it is possible that a party would want the court itself to talk to the child so that the court can determine what effect testifying would have on the child. This is permitted in NRS 50.570(2). In Clark County, nothing prevents a judge from interviewing the child outside the presence of counsel or the parents for whatever reason the court deems necessary. EDCR 5.06. This would technically be permissible as the Alternative Methods Act was intended to work in unison with existing state laws and not to override them. NRS 50.620. A judge’s choice to evaluate a child in chambers would help to achieve the desired result without forcing a child to, in essence, testify twice.
If the court finds that a child qualifies to testify by an alternative approach, it must then decide whether the child should in fact be allowed to testify by an alternative approach. NRS 50.590. In making this determination, the court must take into consideration whether (1) alternative methods are reasonably available; (2) means by which to protecting the child emotionally without resorting to an alternative method; (3) the nature of the case; (4) the rights of the parties; (5) the importance of the proposed testimony of the child; (6) the degree of emotional trauma that the child may suffer if an alternative method is not used; and (7) any other relevant factor. NRS 50.590. Although it is unclear in the statute, it is reasonable that these factors be addressed by the court at the same hearing that the NRS 50.570 request is made. Although emotional harm to the child is a paramount concern for the court, as addressed below, the impact on the rights of the parties cannot be overlooked.
What are alternative methods? The Alternative Methods Act defines an “alternative method” by what it is not. In other words, an alternative method is one which does not include all the following: (1) having the child testify in person in an open forum; (2) having the child testify in the presence and full view of the finder of fact and presiding officer; and (3) allowing all of the parties to be present, to participate and to view and be viewed by the child. NRS 50.520.
By the Alternative Methods Act’s very definition, the use of only one or a combination of two of the foregoing three factors would constitute an alternative method. Along these lines, the Alternative Methods Act would permit a judge to conduct an in-chamber, on-camera interview of the child with the attorneys submitting questions for the court to ask the child. Meanwhile, the parties would be allowed to watch the child’s examination. The judge could examine a child in open court with only the attorneys present. Counsel would have an opportunity to object if appropriate. Further, the attorneys would direct and cross-examine the child in open court with the parties waiting outside of court. The judge could also use a combination of these methods to best serve the goals of justice, minimizing the adversarial aspects of litigation and reducing the emotional impact on the child.
The Alternative Methods Act does not attempt to strictly define the method or methods by which face-to-face confrontation with the child witness may be avoided. NRS 50.500 through 50.620. The term is defined broadly. It encompasses alternative methods currently recognized across the country for taking the testimony of a child, such as audio visual recordings to be later presented in the courtroom, closed-circuit television which is transmitted directly to the courtroom, two way video conferencing or other arrangements that shield the child from direct confrontation with a particular party or the finder of fact. Nev. Sen., Minutes of the Senate Committee on Judiciary, 72 Session Nev. Leg. (February 11, 2003). The Alternative Methods Act also takes into consideration other similar methods either currently employed in the State or through technology yet to be developed or recognized in the future. NRS 50.560(2)(a).
Whatever method is ultimately chosen, it must protect the parties’ due process rights and “permit a full and fair opportunity for examination or cross-examination of the child witness by each party.” NRS 50.610. However, what constitutes a full and fair opportunity appears to be initially determined by the court. NRS 50.600(3) states, “The alternative method ordered by the presiding officer may be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order.” Further, this provision does not impact upon other established state proceedings where the right to examine or cross-examine the child witness are already restricted or limited. NRS 50.560(2)(a).
Finally, the court’s order regarding testimony by alternative method has to specifically lay out the method to be used, the court’s reasons justifying the method and any special conditions necessary to facilitate examination of the child. NRS 50.600. By requiring an order to contain specific findings and state the procedures to be involved, the Alternative Methods Act ensures the court’s decision can be challenged and raised before the Nevada Supreme Court. Nev. Sen., Minutes of the Senate Committee on Judiciary, 72 Session Nev. Leg. (February 11, 2003 and April 15, 2003).
Because the welfare of the child witness is so important to the court and the parties, requesting that a child testify in a custody proceeding, even by alternative methods, cannot be taken lightly. A thorough consideration of what counsel hopes to achieve, whether the child is in a position to assist and most importantly what emotional trauma the child may suffer is critical to addressing the issue. Thoughtful use of the Alternative Methods Act is one way to give a child a voice while simultaneously shielding them from harm in perhaps the most significant legal proceeding of their life.