Holiday v. Holiday
2011 WY 12
Wyo.2011Background
- In a Wyoming divorce, the district court awarded Father primary physical custody of four sons; Mother appeals.
- Mother moved to Utah with the children; issue arises whether the oldest son’s custodial preference should be considered.
- Mother designated the oldest son as a potential witness to express his preference in chambers; Father objected to interview and to the procedure.
- Mother also designated Dawn Blanchard to testify about custody; the court sustained a defense objection to Blanchard’s opinion testimony.
- The district court did not interview the child and did not consider the child’s expressed preference; the custody order was entered awarding Father custody.
- The Wyoming Supreme Court reversed, remanding to fashion a procedure to obtain and consider the oldest son’s preference, or to conduct an appropriate alternative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused discretion by not considering the oldest son’s custody preference. | Holiday argues KES requires considering the child’s preference and permitting a method to obtain it. | Holiday objected; Father contends no agreed procedure existed; Mother failed to propose a workable alternative. | Abuse of discretion; must fashion a procedure to obtain and consider the child’s preference. |
| Whether the district court properly excluded Blanchard’s lay opinion on custody. | Blanchard’s lay opinion about custody is admissible under Rule 704 as an ultimate issue. | The court correctly excluded it as not helpful and lacking proper foundation given limited contact. | Harmless error; exclusion not likely to have changed the outcome. |
Key Cases Cited
- Douglas v. Sheffner, 331 P.2d 840 (Wyo.1958) (child custody interview permissible with safeguards)
- In Interest of MKM, 792 P.2d 1369 (Wyo.1990) (superseded by statute; discusses child preference considerations)
- Tytler v. Tytler, 89 P. 1 (Wyo.1907) (early custody preference considerations)
- Curless v. Curless, 708 P.2d 426 (Wyo.1985) (child’s wishes are a factor to consider)
- Love v. Love, 851 P.2d 1283 (Wyo.1993) (child welfare; wishes deserve serious consideration)
- Yates v. Yates, 702 P.2d 1252 (Wyo.1985) (weight of child’s preference in custody decisions)
- KES v. CAT, 107 P.3d 779 (Wyo.2005) (framework for obtaining child’s custody preference when objections arise)
- Reed v. Hunter, 663 P.2d 513 (Wyo.1983) (recognizes opinion testimony on ultimate issues link to Rule 704)
- McCabe v. R.A. Manning Construction Company, 674 P.2d 699 (Wyo.1983) (discretionary exclusion of opinion testimony rooted in witness reliability and relevance)