In a contested Georgia custody case the judge may talk to your child privately in chambers, but cannot decide custody on something you were never allowed to see.
What the Rule Allows
Under Uniform Superior Court Rule 24.5(B), “[w]hen custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court.” Attorneys for both parties “may be in attendance but shall not interrogate such child/children except by express permission from the court,” and “[u]pon request, the proceedings in chambers shall be recorded.” In Altman v. Altman, 301 Ga. 211 (2017), the Georgia Supreme Court described the rule as permitting consultation by trial courts with the children involved in custody disputes.
The Judge Cannot Rely on What You Cannot See
Altman is the case to know. At the final hearing in a divorce, the judge interviewed the parties’ two daughters in chambers, then had the transcript delivered marked for the judge’s eyes only and sealed it. The final order discussed what the girls had said and gave the mother primary physical custody. The Georgia Supreme Court vacated the custody order and the divorce decree, holding that trial courts “cannot rely on evidence that was not available to the parties or their counsel.”
No Record Means No Support for the Order
The same problem arises when nothing is recorded. In Blue v. Hemmans, 327 Ga. App. 353 (2014), the Court of Appeals held that a judge does not abuse his discretion by interviewing a child alone in chambers where the parties do not object, “[b]ut any statements made by the child that are not on the record cannot be used to uphold the trial court’s custody decision on appeal.”
So if the judge asks to speak with your child, ask that it be recorded first.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!