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Keywords

appealhearingtrialdivorcedue processobjection

trialdivorcedue processobjection

Related Cases

KES v. CAT, 107 P.3d 779, 2005 WY 29

Facts

After seventeen years of marriage, Mother and Father divorced, with Mother initially awarded custody of their child. Due to Mother's psychological issues, they agreed to a temporary custody arrangement where Father took custody. Following Father's military service, a custody hearing was held, during which the court conducted a private interview with the child, who expressed a desire to remain with Father. The court ultimately modified the custody decree, granting custody to Father, which led to Mother's appeal.

After about seventeen years of marriage, Mother and Father divorced. Mother was awarded custody of the parties' only child (the Child), who was almost eight years old. A year later, because Mother was suffering from psychological problems, Mother and Father agreed that Father would take temporary custody of the Child.

Issue

Did the trial court abuse its discretion in changing custody of the Child to Father, and did Father meet his burden of showing a material change in circumstances?

Both Mother and Father present the following two issues for our review: 1. Did Father meet his burden of showing a material change in circumstances? 2. Did the trial court abuse its discretion in changing custody of the Child to Father?

Rule

In custody matters, the welfare and needs of the children are paramount, and a trial court must not conduct a private interview with a child if one parent objects, as this infringes on due process rights.

It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration.

Analysis

The court found that the trial court's decision to conduct a private interview with the child over Mother's objection constituted an abuse of discretion. The court emphasized that due process requires that both parents be apprised of all evidence and have the opportunity to challenge it. The court noted that while the child's preference is a significant factor, the method of obtaining that preference must respect the rights of both parents.

In order to obtain modification of the divorce decree, Father bore the burden of demonstrating that: (1) a material change in circumstances affecting the Child's welfare had occurred since the entry of the initial decree, and that (2) modification was in the Child's best interests.

Conclusion

The court affirmed the finding of a material change in circumstances but reversed the custody modification due to the improper private interview with the child, remanding the case for further proceedings.

We conclude that, in the instant case, the district court abused its discretion by conducting a private interview with the Child over Mother's objection and without any safeguarding of Mother's due process rights.

Who won?

Father prevailed in the initial custody modification but the Supreme Court reversed that decision due to procedural issues regarding the private interview.

Affirmed in part; reversed in part and remanded.

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