Altman v. Altman, 301 Ga. 211

Background

Married parents with two daughters; separation followed mother's allegation of molestation that DFCS found unsubstantiated and ex parte protective orders were dismissed.
Father filed for divorce; trial court ordered extensive psychological evaluations and appointed a custody evaluator and a court expert (Dr. Hill). Evaluator recommended Father receive primary physical custody due to concerns Mother coached children and had trouble separating fantasy from reality.
After multiple hearings, the court held a final custody hearing on November 4, 2015, and then conducted ~20-minute in-chambers interviews of each child without the parties, Father's counsel, or Father's court reporter present in the courtroom.
The court obtained a certified transcript of those in-chambers interviews, labeled it “HIGHLY CONFIDENTIAL” and kept it off the public record; no sealing hearing was held at the time.
The court’s final custody order reversed earlier temporary custody, awarding Mother primary physical custody and expressly referenced the court’s interviews with the children as influencing its decision. Father and counsel were denied access to the interview transcript; the court later entered a brief sealing order without the findings or hearing required by the Uniform Superior Court Rules (USCR).

Issues

Issue	Altman (Father) Argument	Altman (Mother) Argument	Held
Whether a trial court may rely on information from in-chambers interviews of children that was not available to the parties/counsel	Court erred: relying on off-the-record interviews denied Father opportunity to rebut; such evidence cannot form basis for custody ruling	Mother conceded court relied on interviews but did not defend secrecy; generally argued court’s findings supported custody change	Court vacated custody order and divorce decree because the court relied on information unavailable to parties/counsel and they had no opportunity to be heard
Whether sealing the transcript without complying with USCR was proper	Sealing without proper procedure and without a hearing violated parties’ rights and public access rules	Sealing order insufficiently justified; no detailed defense in record	Court reversed the sealing order: trial court failed to hold hearing and make required factual findings under USCR 21; sealing improper
Whether trial court may keep a transcript “off the record” and later rely on it without docketing	Not permissible; materials used in decision must be part of record and accessible to parties	Implicitly argued confidentiality concerns justified limited access (but did not overcome procedural defects)	Court held it was improper to keep materials entirely off the record and then rely on them in ruling
Whether transcript could be sealed from public on remand	Father argued parties must have access and ability to rebut; public access rules require findings and hearing	Mother did not show required individualized showing of harm outweighing public interest	Court did not foreclose sealing from public in future but directed any sealing require compliance with USCR (hearing, findings, specificity)

Key Cases Cited

Kohler v. Kromer, 234 Ga. 117 (court cannot rely on evidence not available to parties)
Peeples v. Newman, 209 Ga. 53 (same principle regarding reliance on unavailable evidence)
Kilgore v. Tiller, 194 Ga. 527 (same)
Osgood v. Dent, 167 Ga. App. 406 (same)
Atlanta Journal & Atlanta Constitution v. Long, 258 Ga. 410 (right of public access to court records; sealing requires specific procedure)
In re Motion of Atlanta Journal-Constitution, 271 Ga. 436 (sealing orders must be supported by detailed findings and hearing)
Wall v. Thurman, 283 Ga. 533 (trial court erred sealing without notice/hearing and necessary findings)
Williams v. Stepler, 221 Ga. App. 338 (importance of court reporter when courts consult children; preserve record)