*1 Appeals The Court of Civil was not show his harm was sub- correct. prisoner need however, stantial; provide would addi- I affirm the such would trial court on the issue for the inmate's claim that support tional "deliberate indifference" and all other deliberately to his was indifferent defendant issues. Penner, 489 F.3d

needs." Jett

(Ith McGuckin, Cir.2006); 974 F.2d see also

at 1060.

§86 case, In the the duration surrounding delay, the cireumstances and delay, sharply disputed. person- evidentiary ma- representative

al submitted 2010 OK 29 indicating jail personnel were terial that urgency that was essential when Ms. aware YNCLAN, Petitioner, Noah Shawn inhaler, jail that person- Crowell needed her promptly respond nel did not when the call inhaler, delay and that the

was made for WOODWARD, K. The Honorable Paul bringing the inhaler to Ms. Crowell was as Special Judge, District twenty personal repre- long as minutes. The Respondent. evidentiary material also indicated sentative's 107,478. No. jail personnel recognized placement that storage delayed the inhaler in locked Supreme Court of Oklahoma. response bringing the inhaler to Ms. time Crowell, proposal keep the inhaler March proximity in closer had been discussed but As Corrected March implemented. The medical evidence that Ms. Crowell died from an acute showed

asthma attack. cireumstances, a reason-

137 Under these jail

able fact finder could conclude that acted with

personnel and Sheriff deliberate medical

indifference to Ms. Crowell's serious genuine were

needs. We conclude there respect fact with to delib-

issues of material arising delay from the

erate indifference

providing medical care to Ms. Ac- Crowell summary

cordingly, judgment favor of sheriff, Albrecht, Beggs,

defendants as

Beck, Stevenson, capaci- in their official

ties, is reversed and the cause is remanded trial.

CERTIORARI PREVIOUSLY GRANT-

ED; THE OPINION OF COURT OF CIV- VACATED;

IL JUDGMENT APPEALS THE TRIAL AFFIRMED IN

OF COURT

PART, PART, IN AND RE- REVERSED

MANDED. EDMONDSON, HARGRAVE, C.J., COLBERT,

OPALA, KAUGER, WATT,

REIF, JJ., concur. TAYLOR,V.C.J., with whom

WINCHESTER, J., joins, dissenting. *2 proceedings private

after the in camera interview occurs. Consequently, original jurisdic we assume questions, and tion to address these to delin *3 guidelines eate the for trial courts to follow conducting an when in camera interview of custody/visitation in children matters. We party par that also hold unless one both determination, custody ties require does not that either transcript have access to the of the in cam merely era interview of the children to satis fy curiosity. Supreme their own Oklahoma 1.88, Court Rule Ch. is 0.98.2001 today's holding. amended to conform with

FACTS presented 12 Because the matter is as a request original jurisdiction to assume and to mandamus, a writ issue the facts in the relatively sparse. appears record are It that (the mother) Naney Y¥nclan and Nolan Shawn (the petitioner/father) Ynclan were married Day on couple Valentine's 1996. The had 1996, 1997, 1999, four children born 27, 2008, February and on the mother filed for divorce from the father in Garfield County District Court. proceeded 3 The matter to trial on Janu- ary January 14 and 2009. On the second Maxwell, Enid, OK, William B. for Peti- trial, day the trial interviewed the

tioner. children, chambers, three oldest Roberts, Enid, OK, Respon- Michael D. parents being present. counsel or the How- dent. ever, reporter a court was to take notes. The three interviews lasted less than J.;:

KAUGER, fifteen minutes. The mother insists that [1 impression. agreed pres- This is a case of first We counsel for both sides not to be interview, ques- have never determined under what cireum- ent in the but that written 1) may: According stances and conditions a trial court tions were submitted. to the fa- conduct in camera1 interviews of children ther, interview, promptly after the he made subject custody who of child request and/or an informal for the of the proceedings;2 provide visitation children's interviews tendered his cost generally 1. An in camera interview is an "in allegation raised, no one been relies on essentially ap- chambers" interview which do we what matter, effect, this nor know if any, proved ex-parte communication because it is a allegation had on the trial court's decision or communication involves fewer than all of questioning of the children. While some of the ordinarily legally who would enti- procedures may may helpful same not be present during tled to be the discussion. See negligence proceedings, other contexts such as RJ.HL., (D.C. N.D. v. 979 A.2d fu. cases, termination of or when 2009). allegations present, of sexual abuse are our deci- today expressly prefer- sion limited to a child's Apparently, point, at some the mother had custody ence in child visitation matters. and/or allegations made that the father have mis- allegation may treated the children. While this I. denied and at the request was deposit. This trial, granted conclusion IN GUIDELINES FOR CONDUCTING mother awarded the divorce and IN INTERVIEWS CHILD CAMERA the children. DISPUTES CUSTODY/VISITATION- February the father made T4 On PURSUANT TO O.S. court to review the request a formal § 113. testimony. The transeript children's March court held Supp. argues T6 The father that 20 0.8. transcript. father's for the denied the 106.4(A) and 48 O.8. April filed on The divorce decree was 113(C), collectively, require taken mother, trial court indi- According the *4 custody pro- camera interviews of children transcript could be made avail- cated that the that ceedings be transcribed and the statutes appeal, father purposes of but the able for require par- the trial court to allow the also divorcee decree. did not from the On transcripts. In ents to review such other August the trial court filed a writ- words, transcripts may alleges he the reflecting on March ten order its decision parties or not be sealed from either the their 2009, denying the father review of the tran- attorneys. August the father filed seript. On application and brief for mandamus this 106.4(A), gov- § Supp.2007 1 7 Title 20 0.8. Court, seeking which an order would direct reporters erns the duties of court and it trial court to allow him access to the the part: provides pertinent (No transcript transeript. has been made review.) Court for available this permit ... A refusal of the court to or to require any by statement taken be down jurisdiction original to de- 15 We assume reporter the court or transcribed after be proper procedure for a trial court lineate the down, ing upon being taken the same considering an in to follow when camera by shown affidavit or other direct and com custody in the context of child evidence, Court, petent Supreme to the or disputes. visitation Under the facts and/or court, appellate presented, deny writ shall we also the of manda- constitute process . .. .3 mus. denial of due of law may, objection by party text of 20 O.S. 3. The full 106.4 unless is made or counsel, provides: proceedings electronically order the proceedings may proceed recorded. A trial or reporter report- A. The court shall make a full necessity reporter being without the aof hand, ing by stenographic steno- means present, objection by party unless there is or notes, mask machine or a or combination transcript counsel. Provided that if an official thereof, proceedings, including state- of all the prepared by the is ordered then shall be and the court and the evi- ments of counsel reporter. official court dence, judicial proceedings in trials and other Upon request party B. of either civil or assigned reporter by to which the court the case, criminal shall transcribe the reporter judge by judge appointing excused unless proceedings judicial pro- in a trial or other trying who is the case with the consent of the ceeding, may request- much or so thereof as be Nothing to the action. herein con- by party, certify ed to the correctness of the tained shall be authorize the certi- construed to and deliver in accordance same transcript, persons fication of as certified shorthand re- Supreme rules of Court. The fee porters rely exclusively upon who the steno- original transcript for an shall be Three Dol- judicial proceedings, reporting except mask for ($3.50) fifty per page. lars and cents Two provided by as law. A refusal of the court to copies original be fur- shall permit require any or to statement to taken be charge. page nished without additional Each reporter down or transcribed after twenty-five page shall be at least lines to the down, being upon being taken the same shown typed no fewer than nine characters to the competent affidavit or other direct and evi- typed page inch. Each shall be no more than dence, Court, Supreme appel- or other spaced margin double and the on the left side page be no more than one and one- shall late shall constitute a denial of due (1 process reporter may 1/2) margin right of law. The court use an half inches and the supplementary page electronic as a de- instrument side of the shall be no more than one-half trial, (1/2) any proceedings, edge paper. vice. inch from prescribed by transcripts before whom the matter is heard format for all shall be present. attorneys de If held that when the trial court allowed to haveWe reporting timely request state, the state present, nies a shall for the judicial in a counsel and the court ments of record, the reasons for their exelusion. At We have is denied.4 proceeding, party, of either a record shall right complain indicated also any proceeding be made of such in chambers.... of due type this of denial However, we have not addressed waived.5 application this statute in the context ^[1] 99 The mother does not address transeripts. in camera 106.4, but, instead, access to argues that the father attempting requirements $ to add into 113(C),gov- $ Title 48 0.8. T8 which do not exist. She also contends that ability a trial court's to consider the erns original jurisdiction in we should not assume preference of children in visi- and/or cause because the father could have this disputes, provides pertinent and it tation appealed the final divorce decree and raised part: transeript the issue of his denial of access to expresses . If C. the child party at that time. Neither addresses gives testimony, preference or tes such *5 applicability, any, if of Supreme Oklahoma timony may by be taken the court in cham 1.33(e), parents parties the or other Court Rule bers without 0.98.2001 Ch. Nero, making Supreme Court. The fees for the noted this waiver as well Nero v. the in paid by transcript be in the first instance shall OK CIV APP P.3d 127. party requesting transcript the the and shall be 0.$.2001 provides: 6. Thefull text of 43 taxed costs in the as suit. any proceeding A. action or in which a judge or own When the on his her motion custody court must determine or limits of or notes, reporter's transcript orders a of the the visitation, period may express of the child a charges judge may payment direct the of preference parents as to which of its the child charges of the as costs in such the taxation custody. wishes to have appropriate. In a manner as the court deems B. 1. The court shall determine whether the action, criminal if the defendant shall by best of the interest child will be served the judge to an the defendant the affidavit expression preference of as to which good intends in faith to take an custody should have or limits of or transcript reporter's case and that a period parent. of visitation of either If necessary notes is to enable the defendant finds, may express the court so the child such prosecute appeal, and that he or she has give or other preference testimony. pay transcript, not the means to for the age 2. If the child is of a sufficient to form an court, upon finding that there is reasonable intelligent preference, the court shall consider averment, basis for shall order the tran- expression preference testimony of or other script expense made at the of the district court determining custody in child or limits of delivery preparation, fund. The format period or of visitation. The court shall not be filing transcripts of to be civil and used in by bound the child's choice and take other appeals may regulated by criminal the Su- awarding custody facts into consideration in or preme Court. However, limits of or of visitation. if period reporter C. The court her shall file his or age a the child is of sufficient to form an proceedings records of the evidence and the intelligent preference court does not any in taken case with clerk of the court in expression preference follow the of the child which the case was tried. as to or limits of visitation, custody, substantially D. To the extent that it does not specific findings supporting shall make of fact reporter's official interfere the court by requested party. such action if either duties, judge by reporter a em- whom presumption 3. There shall be a rebuttable ployed assigned may or to whom he or she is (12) years age that a who is twelve child or assign reporter to secretarial or clerical age older is of a sufficient an form intelli arising operations. duties out of official court gent preference. expresses preference gives C. If the child or Cannon, 4. Funnell v. 1978 OK testimony, testimony may such Brown, See also 1920 OK Cherry by be taken the court in chambers without the ¶ 0, 227; 79 Okla. 192 P. Hatha Dabney parties present. attorneys or other If 152 P. 672, ¶ 21, 1915 OK 51 Okla. way, are not allowed to be shall present, state, for ex record, reasons their party, At the clusion. of either a rec Wedgewood Village, Inc., 5. See Weeks v. 1976 OK any proceeding ord shall be made of such in P.2d The of Civil 72, 110, Court Ap- chambers. though binding Court, on this has also peals, cumstances, should be entitled to transeripts governs the access which provides: transcripts It after the interview. appeal. access such (e) Record Parties the issue is a common occurrence in Access to the Because courts, Counsel. our we have conducted an extensive has been procedure guidance rule of Until a uniform review of sister states for con- shall promulgated this procedure. structing this and to the have access to the procedure 111 The of a trial con file in the trial court bound instruments on ducting private, in camera interview with a may impose.7 as that court on such terms child, depending upon age maturity, has [ the rule ex- 10 Neither the statutes nor widely discovering a means of been. used as provided pressly require the father preference.8 pur the child's custodial recognize that transcript. with a We conducting private, an poses father could have mother is correct that the open presence court in rather than appealed the divorcee decree and raised his include: transcript argument. denial of access to the Nevertheless, this issue is a matter because 1) might of the harm a child elimination interest, public at least to the extent that exposure to suffer from examination and every potentially raised in divorce could and the adversarial na cross-examination or visitation of children case which proceedings generally; ture of the jurisdiction disputed, original we assume pressure reduction added conducting and address situation; already stressful whether, such interviews and or what cir- (1958); Douglas Sheffner, Wyo. 7. We need not recite the full text of Oklahoma 17-18 *6 1.33, 15, 0.$.2001 Supreme 12 Ch. Court Rule (Wyo.1958), 840, 331 P.2d 845 on superseded MKM, grounds In re Interest 792 P.2d 1, herein, but we note that it involves of form and content of records on and also (Wyo.1990); Nelson, 1369 Nelson v. 43 Wash.2d governs (1953); clerk, duties various of 278, 886, Gill, 260 P.2d 887 Callen v. 7 312, 319, (1951); assembling Marriage A.2d re and trial court record N.J. 81 495 In reporter, appeal. Armbeck, 260, 300, Colo.App. 33 518 P.2d 301 of (1974); Kitchens, 249, Kitchens v. 305 So.2d 250 1932, early began considering Brown, (D.C.Fla. 1974); 8. As as Oklahoma 3rd Brown v. 510 preference. 14, the child's custodial Garlin v. Gar- (Ky.Ct.App.1974); S.W.2d 16 v. Lin- Lincoln Okla. 7 P.2d lin, 52, 10, 230, 1932 OK 154 463. 24 247 coln, 270, 659, NY.2d N.E.2d 299 statute, 113, Supp.2002 § Oklahoma's 43 O.S. (1969); 842, Stickler, N.Y.S.2d 845 Stickler v. 57 6, was first enacted in 1975 as 12 (1965); supra, 286, 720, 206 NE.2d 723 IllLApp.2d Although § 0.8. 1277.1. it didnot Oakes, 387, Oakes v. 45 195 N.E.2d IllLApp.2d specifically privaie, address in camera inter- (1964); 840, 844 Baker v. 363 S.W.2d Vidal, 158, views, it did allow the trial court to consider Wilhelm, (Tx.Civ.App.1962); v. 214 159 Wilkelm preference custody disputes child's as one (1957); Jenkins, Md. 133 A.2d 423 Jenkins v. 80, considering custody. Certainly by factor (Cal. 109, 269 P.2d 908, 125 910-11 Cal.App.2d 1975, many recognized courts the universal ac- Hicks, 641, App.1954); Tenn.App. Hicks v. 26 ceptance conducting private of interviews with (1943). 371, 176 S.W.2d 377 custody proceedings. generally children in See Bernstein, Annotation, S. Court Con- Propriety of Knoche, 297, Marriage Ill.App.3d 9. In re 322 of ducting Interview Child in Private Determin- 716, 304, (2001). 255 IlLDec. 750 N.E.2d 297 (1965). ing Custody, 99 A.L.R.2d 954 See Jack- spare agony To the child the inherent Smith, 923, son v. 250 Ark. 467 S.W.2d 705 704, up family by subjecting break of unit (1971); 777, Conkling Conkling, v. NW.2d 185 testify open child to court and be cross-exam- (Iowa 1971); Winkler, 785 Winkler v. 252 Ind. ordinary ined as if the child were a witness in an (1969); 136, 375, 246 NE.2d 376 duPont v. litigation. Burghdoff Burgh- v. criminal or civil duPont, 206, 674, 59 Del. 216 A2d 681-82 608, 679, doff, Mich.App. 66 N.W.2d 682 239 (1966); Lawson, 444, v. Lawson 87 Idaho 394 (1976). Calling child as witness in divorce dif- 1008, (1964); Seelandt, P.2d 24 1010 Seelandt v. any proceeding fers from other civil or criminal (1964); 73, 66, Wis.2d 128 N.W.2d 67-68 Franks parents' divorce is one of the most because Franks, 346, 678, v. 163 323 N.E.2d 681 Ind.App. events that affects a child. Reed v. traumatic (1975); 367, Gonyea Gonyea, 232 Or. 375 P.2d Reed, 734, 806, 809 189 Misc.2d 734 N.Y.S.2d (1962); 808, Newman, 811 Correll v. 236 Miss. (2001). (1959); 545, 643, 111 So.2d 645 Bowler Bowl- (1958); er, 505, 351 Mich. 88 509 398, NW.2d Knoche, 9, supra. Marriage 10. In re Johnson, 263, 16, Johnson v. 7 Utah 2d 323 P.2d of 151 3) ability Obviously, purpose to be 112 enhancement of of such a 11 forthcoming; to lessen the ordeal for the but, rather, parents, to lessen the ordeal for 4) feeling disloy reduction of the child's the child. Nor is it intended to make a openly alty toward a or to choose findings.18 secret of the basis for the court's sides;1 only the child is one of 5) many of the emotional trauma minimization factors considered when deter child,14 mining the child's interest affecting by lessening concerning the or best custody.19 only It should never basis child;1 deal for the determining custody.20 for Nor should a 6) tug the child from the protection of directly child be asked where child would interests;16 competing pull of custodial specifically asking prefer rather live because provides opportunity ence custody awarding placing the manipulation or intimidation of the child as position child in an adverse between the well as an opportunity manip child to parents.21 parents.17 gives ulate the It also the child Knoche, (1990). Marriage re In addition to 11. 43 O.S. open veracity might If held in the child's 43 0.S.2001 112.2 supra, suspect many and in cases would be cumula- mandatory lists some considerations when con- sidering custody. Oklahoma caselaw also enu- Allen, to other evidence. In re Matter tive (2004). Kan.App.2d 97 P.3d merates several factors to be considered when considering the best interest of the child in deter- Marriage Hefer, TIl.App.3d -In re mining custody. The best interests of the child (1996). Til.Dec. 667 N.E.2d paramount must be a consideration of the trial considering custody court when and visitation. Lesquskis Lesauskis, 111 Mich.App. Daniel v. Daniel, 2001 OK P.3d Hicks, (1982); 314 N.W.2d Hicks v. Many factors have been used to consider (saves from embarrassment supra previous determinations. Some factors have testify having parent). in from of also included: the interest shows in the child [Rice Rice, 1979 OK 14. Normand v. 109 N.M. 785 P.2d Ray, 1125; Park, P.2d Park v. 1980 OK CIV APP 19 (1990). good We note 747-48 that is never 826]; Gilbert, stability 610 P.2d [Gilbert v. give idea for a trial the children his or OK 133, 16, 929]; lifestyle her number, email, or invite the child to phone *7 Brim, 4, 19, [Brim v. 1975 OK CIV APP 532 P.2d networking contact them on social websites after 1403; 12, Cooper Cooper, v. 1980 OK CIV APP an in camera conducted in case the 8,1 610 P.2d 1226]. child wants communicate further with the 763, judge. Frengel Frengel, See v. 880 So.2d (Fla. judge disqualified 764 20. Title 43 O.S. see 113, 6, note conduct). v. Kitchens, 8, such Kitchens see note supra. supra. 12, Marriage Hefer, supra; In re see note Blue of Brooks, 338, 269, v. Stickler, 15. Stickler v. see note Protects 261 Ind. 303 N.E.2d 272 8, supra. choosing the child from trauma and distress of (Ind.1974); McCauley McCauley, v. 678 N.E.2d open between court. Surman v. Sur 1290, Hamdan, (Ind.App.1997); 1292 Romi v. 70 man, 287, 802, Mich.App. 277 745 N.W.2d 809 934, 523, (1979). A.D.2d 417 N.Y.S.2d 524 Nor (2008); Impullitti Impullitti, Mich.App. v. 163 preference binding is the of the child (1987). 507, 261, 415 N.W.2d 263 Interviews Milovich, Marriage Til.App.3d court. In re 105 of - have even been held outside of the local court- 596, 456, 811, (1982); 61 IIl.Dec. 434 N.E.2d 823 park encourage room in the so as to children Rosemary, In the Matter Robert v. 148 A.D.2d of open. be at ease and more See Desmond v. 449, 605, (1989) (court 538 N.Y.S.2d 607 erred Desmond, 134 62, 979, Misc.2d 509 N.Y.S.2d 981 placing emphasis undue on in camera inter- (1986). views). 16. v. 14, Normand see note Ray, supra. J.H., 301, Custody 21. In re 231 Mont. 752 P.2d of (1988); Marriage 194, 195 In re see note Hefer, of Marriage Brown, 1297, In re 597 N.E.2d of 12, Vrban, (Ind.App.1992). supra. 1300 Marriage See also In re 359 of 420, (Iowa 1984) (evident N.W.2d 425 that both manipulate tried to the children's testi- Stickler, 8, 18. Stickler v. see note supra. mony); v. 2006 Pa Rinker, 129, 902 Super Sainitz 509, 78, (evident (Utah Paryzek Paryzek A.2d 513 that mother threat- v. 776 P.2d 81 1989). Kitchens, 8, father, supra. ened child Kitchens v. that if went to live with again). mother never wanted to see child v. Jeantete, 417, 66, Jeantete 111 N.M. 152 contrary concepts an preference is "the" cedure is to the basic impression that their Rather, instance, custody. the trial system.24 For KES

deciding factor adversarial CAT, v. 2005 107 779 WY an interview so as conduct such court should P.3d preference, while at the the child's (2005), to discern parent objected a in which one case time, to how the child is being sensitive same by the trial the child interviewed court divorce, put pressures coping with the private, Supreme Wyoming Court of stating prefer and by the divorce the child principal noted that: "the fundamental ence, ascertain the motive of as well as to Anglo-Saxon law that decision must stating preference.22 When the child in open based on evidence lest the child's best inter trial court determines guaranty infringed." by considering the child's est will be served that flip side of the coin is "the conviction of an to hold such inter preference, whether in the and medical sci those trained social the trial court's disc generally view is within that the informal ences obtain retion.23 outlook, preference, in ing the infant's chambers, judge's terest in the calm of the interview is not held in 13 Because the away pressure parents, pro presence parents, from open recognized pro that such a vides best for the welfare of the child and of courts have also 15, Ray, supra; Barry Barry, note v. see v. Place, 252, 704, 129 NH. 525 A.2d Place v. 129, 143, (2006); (1987). App.3d At least one court has noted that Ohio N.E.2d 401, 344, prefer- Dodge Dodge, have been motivated to state children v. 332 S.C. 505 S.E.2d Dodd, new Ree- ence bribes from a such as (S.C.App.1998); v. 352-53 Dodd boks, installing hoop, buying dog, 286, basketball (Tenn.App.1987); Paryzek v. S.W.2d finding apartment swimming pool. with a 19, Paryzek supra. 12, Hefer, Marriage note See In re see cases, In some refusal or failure to interview a 113, statute, Supp.2002 § 43 O.S. age maturity 23. Oklahoma's appropriate child of have been uses the term when "may" supra, duPont, held to be reversible error. duPont v. referring to the in chamber interview and it Mackowski, Mackowski v. supra; considering requires preference is in the (1998)(refusal 721 A.2d N.J.Super. courts, best interest. Most whether year interview sixteen old an abuse of discre- agree conducting Vincent, tion); otherwise, statute or such Stringer Mich.App. an interview is a maiter of discretion for the trial (1987); 411 NW.2d Donscheski dependent upon including: several factors Donscheski, Neb.App. NW.2d children; age maturity the child or (2009); Baker, 221-22 Bovard v. 775 A.2d case; circumstances of the the child's (Pa.Super.2001). 840-41 It has also been held already have been disclosed neglect requested error to to interview when evidence; through there is a or whether Badgett Badgett, App.3d do so. 120 Ohio psychologically risk that the child would be (1997); 698 N.E.2d 86-87 Gonyea Gonyea, by conducting such an interview. See harmed (error child if re- call supra S., In re Priscilla 1997 ME 689 A.2d 593 error). quested, but not reversible (1997); (Del. W.G., FG. v. 445 A.2d *8 1982); v. 423 A.2d 254, 895, 178 Conn. Joy Joy, Watermeier, 1272, 24. Watermeier v. 462 So.2d Strain, 904, (1979); 897 Strain v. 95 Idaho 523 Cir.1985). (La.App. open judi- 1274-75 5th An Newman, 36, (1974); P.2d 38 Correll v. see note proceeding judicial cial assures fairness in our Marriage 8, Bolt, 54, In re 259 Mont. supra; of system. Newspapers, Virginia, Richmond Inc. v. 322, Beran, (1993); P.2d Beran v. 854 325 234 555, 570, 2814, 2824, 448 U.S. 100 S.Ct. 65 (1990); 296, 688, Neb. 450 N.W.2d 692 Place v. (1980). Press-Enterprise L.Ed.2d 973 In Co. v. Place, 22, Gill, see note Callen v. see note Cal., 501, 508, Court 464 U.S. 104 Superior of 8, Palmer, 412, supra; v. Vt. Palmer 138 416 A.2d 819, 823, (1984), finding S.Ct. 78 LEd.2d 629 (1980); Christopher Christopher, v. 62 143 infirmity closing jury constitutional (1963); 82, 115, Wash.2d 381 P.2d 118 In re process prosecution, in a criminal selection said: Wanstreet, 729, Marriage Ill.App.3d 364 301 of open plays important a (2006); trial thus as role in 706, 716, Ill .Dec. 847 N.E.2d 719-20 In Marriage Slayton, Cal.App.4th justice today the administration of as it did for re 86 of separation England. (2001); centuries before our from A.R., 103 545 In re 679 A.2d Cal.Rptr.2d 470, Marriage openness (D.C.App.1996); 477 of in the fact that In re Tu The value lies of actually attending people trials can have (Co.App.1991); rek, 817 P2d 615 Franks v. being confidence that standards of fairness are observed; Franks, 8, Kitchens, see note v. Kitchens supra; knowledge anyone the sure is see note 8, Brown, 8, Brown v. supra; gives attend assurance that established free to Knott, 505, Knott v. 418 N.W.2d 509 supra; Wright Wright, procedures devia- (Minn.App.1988); v. 279 Mich. followed and that 291, 443, (2008); 452 tions will become known. 761 N.W.2d Normand

153 25 Undeniably, conduct views a child society as a whole." private consent parent, parent deprived of a process an raises due of due ing such process inasmuch as he or she is unable issues, as the fairness insofar fundamental evidence, given oppor- and is not an At conflict with the hear parents are concerned.26 tunity explain or rebut statements made process rights is the parents' basic due by the child. right express heard and to to be preference as to where he or she will live.27 Consequently, 1 15 balancing parental process rights right due with the child's to be Wyoming

1 14 The Court also noted sever- heard and the court's interest process implications which arise in al due obviously required. child is Numerous custody litigation parent's right such as the - courts have addressed the issue of how such or her to associate with rear his conducted, an interview should be whether it "liberty protected by [a/k/a interest" recorded, should be and whether the Fifth and Fourteenth Amendment have access to the should to com- States], Constitution of the United en- port process implications. with due joy companionship, their children's and to spite implica upbringing. 116 In of the due process direct When an in camera in- proposed, implications also tions, terview widely in camera interviews are used right apprised arise such as the of all discovering as a means a child's custodial upon which an issue is to be cases, the evidence preference.28 In if most examine, right explain decided and the interview, agree consent or to the a trial including right rebut such evidence custody prefer hold in camera parents.29 ence interview without the If a Wyo- hear or cross-examine witnesses. The object ming Court noted that when inter- does not at v. 2005 WY 107 at CAT, 29, ¶ 18, 779, 25. KES P.3d There are least two American Law Reports O'Neill, (Wyo.2005) subject. quotes 785 relies on and from S. D.W. Child's Wishes as Bernstein, Propriety Conducting Awarding Custody, Court Private Factor 4 ALR.3d 1396 (1965) Bernstein, Propriety and S. Court Determining Con- Interview with Child in 99 Custody, ducting (1965). Private Interview with Child in Determin- 955 954, A.L.R.2d (1965). ing 99 954 A.LR.2d Countless Custody, law review articles have also been written on the CAT, 25, See KES v. Ex supra; parte Jones, Wilson, $o.2d 104, (Ala.1984); subject. Cathy Two include J. Judicial 107 450 Muraskin Questioning Custody Children in and Visitation (N.D.1983); Muraskin, 332, v. 336 N.W.2d 335 Jenkins, (1984) 8, Proceedings, L.Q. 18 Fam. supra; 43 and Barbara Jenkins v. Abbott v. Atwood, Virusso, 326, 52, Custody Litiga- Mass.App.Ct. A. The Child's Voice in 68 862 N.E.2d 61 Empirical Survey Suggestions tion: An (2007); Cole, 908, Williams v. 590 SW.2d 911 Reform, (2003). 45 Ariz. L.Rev. 629 (Mo.1979); Cox, 221, Cox v. 133 515 N.C.App. 61, Burch, $.E.2d (N.C.App.1999); Brown v. (1999). 519 S$.E.2d Va.App. (Ala. Ex 410 So.2d Berryhill, parte Rose, v. Rose 176 W.Va. 340 S.E.2d 1982) (in consent, private absence of waiver or (1985); Berrier, Raper See also 246 N.C. condoned); interview cannot be Jackson v. (1957) courts); (Open S.E.2d Smith Smith, v. Jenkins, Jenkins supra; Rhodes, 192 S.E.2d 607 (due N.C.App. supra concerns if interview it). (Right to hear evidence and refute private objection party); over of either re Marriage Slayton, Cal.App.Ath recognized We have (2001); jeopardy Nowak, Nowak are in when the is denied Cal.Rptr.2d (Fla.App.1989); 546 So.2d right guardian Shaw v. to cross-examine a ad litem 100, §7, 1156,(Fla.App.1984); Cunning [Kelley Kelley, Shaw, 455 $o.2d 2007 OK (Ind. Cunningham, ham v. 787 N.E.2d *9 400]; [Malone Malone, and an ex v. parte report 21, 14, App.2003); Cox v. note Cox, 26, see 296]. 1979 OK 591 P.2d supra; Shep- 71, herd v. 273 N.C. 159 S.E.2d 357 Shepherd, (1968); 23, Christopher Christopher, v. see note Mackowski, 23, See Mackowski v. note supra, rights express a the a for discussion of of child to Rose, 18, Rose v. 176 W.Va. 340 S.E.2d supra; preference preference (1985); and and for that to be 176, CAT, 25, 179 v. see note KES supra. making acquiescence may implied considered in determination. Parental be where the 111, Hughes Hughes, parents object opportunity v. 223 Wis.2d 588 NW.2d had an to to the inter- (1998) (Trial 346, view, H.S.F., 355 statute but did not do so. In the Matter required of preference.). (2006). to consider child's See also Oakes 416, 177 628 S.E.2d 420 193, N.C.App. Oakes, 8, supra, why upon v. note discussion of Consent has also been conditioned a court Wilson, reporter being present. the courts have an interest in from the Ex Parte see 26, why and the It child's is relevant. note has also been held that trial 154 interview, any objection allowing lawyers to either submit or ask then the time of the However, parent if questions, or both.31 appeal.30 Even when waived on generally

is se, acting pro pro se is excluded is usually protect the courts given, consent altogether.32 the interview from rights either parents' due {17 parents' lawyers to requiring procedures allowing or Other various have been developed, attempts to resolve the conflict during interview or at least present 2) competency testify; party objects stat- child's to child's even when one interview preference; weight given and to that ed 213, 36 Ohio St.3d 522 Whitaker, to it. In re Burch, 563, (1988); Wanstreet, Brown v. 30 preference. Marriage 568-69 N.E.2d See also In re of 403, (when 670, (1999) 30, statuie, S.E.2d 408 supra (by Va. 519 counsel see note must be depends party objects, to hold interview agreed upon by present unless otherwise maturity, brought age to be matters on: parties); Raich, 1252, Baxendale v. 878 N.E.2d forth, acrimony parents, of between likelihood (Ind.2008) (may 1255 interview with or without factors); improper Lincoln v. influence and present); Jacquay, v. 480 N.E.2d counsel Truden 8, (no Lincoln, deprivation supra 974, statute, (Ind.App.1985) (by 978 trial court interview, objection, right over to fundamental pres- whether counsel should be has discretion see, counsel). People But ex rel. Mele absence of 8, ent); Conkling Conkling, supra v. see note Mele, 670, (1966) v. 26 A.D.2d 272 N.Y.S.2d 445 (recognizes ordinarily should be counsel (error parent's objec- in camera over to interview Woods, present); Woods v. 987 So.2d tion). appears It that at the end of the 19th Cir.2008) (La.App. (attorney's question- 13 2 fn. century, century many half of the 20th first ing is limited to the child's determination supported the broad conclusion that it is cases Pizzalato, S$o.2d competency); v. 902 Fernandez necessarily improper for a trial to hold not (reversible (La.App.2005) error, 1112 part, though parties private interview even have to allow to trial court's refusal counsel to be However, not consented. more current case law present); Duncan, 806, Duncan v. 528 S.W.2d recognize seems to that such interviews are more (Mo.App.1975) (statutorily required 809 to allow implied done with the actual or often present participate); counsel and to In re State v. stipulation. generally See S. Bern- consent or stein, Deal, (Minn. 2007) 740 NW.2d fa. 1 Conducting Propriety Court Private Inter- (must present allow counsel and allow "reason- Determining Child in 99 ALR view with Custody, questions"); Bowler, able Bowler v. 351 Mich. (1965). 2d 954 398, 505, (1958) (due process 88 NW.2d 509 objections may by presence be met of counsel for parent neglects object procedure If chambers); Cox, parties both v. Cox interview, any objection at the time of then (even Armbeck, object Marriage 26, interview, if waived on re supra parties preserved parent's 260, 300, (1974); their due are if Colo.App. 518 P.2d Branch present); Barrett, Offolini v. (Fla.App.1994); Branch, attorney's v. 631 $o.2d 386 Law- 610, (Pa.Super.2008) (by A.2d statute coun- v. P.2d Lawson, 444, 1008,1010 son 87 Idaho present sel must be and must be allowed to (1964); Marriage Wanstreet, In re 364 IIl. child); interrogate 706, Howard, 847 N.E.2d Howard v. 729, 716, 301 Ill.Dec. App.3d (2006) (statute (in requiring (Tenn.Ct.App.2005) unpub- 719-20 counsel to be WL 123494 an agreed upon by opinion unless otherwise the court notes that it would lished inappropriate to hold parties); such Winkler, Winkler v. 252 Ind. (cannot wait attorneys present); Cunningham Cunning- N.E.2d until out- ham, (no object); (Ind.App.2003) 787 N.E.2d Billman, come of interview to Lehman v. (1978); 178 Mont. where trial error court refused to interview when Marez Mares, 217 Neb. 350 N.W.2d agree both would not that the interview Swanston, (1984); Swanston v. 502 N.W.2d would be without counsel and without (1993) (if objection fa. 2 recorded). Prescott, review); nothing then Cullen v. (1990). S.C. 394 S$.E.2d See also 32. At least one court has held that there is no Goodmon, (Fla.App. Goodmon 779 So.2d 490 refusing pro litigant error in to allow a se 2000) (noting good practice be for would opposing in camera interview even when the agreeing right to such an interview waive party's counsel in. rea- is allowed The court appeal); Christopher Christopher, allowing pro would soned that se (consent supra privaie interview constitutes ability forthcoming hinder occurred). right what waiver of to claim error of pressure already add would to an stressful situa- However, tion. the interview was recorded CAT, In KES v. the Court supra, part Marriage In re made of the record. ultimately determined that such an interview Knoche, 9, supra. unpublished In an objects. Rather, should not be held if a parent *10 Pennsylvania, concluded that it case in court parties or the court should fashion an alter- pro parent in was not error to refuse to let the se native such as an interview with coun- sel the interview recorded. The or Carbo, the interview. Carbo v. 2008 WL 5573649 (2008). requires Court also reflect: the record

155 states, process rights presence reporter of a court between the waived,34 can be or the record must be made instance, right to For the child's be heard. only requested by parties.35 if require, either or number of states statute together, judicial holding, 118 Taken 20 O.S. in camera conversa 36 7 106.4(A) Supp.2002 § recorded.33 In and 48 tions with children must be O.S. 1183 con record); Willis, preference but did not Willis v. (recording Wilson, 26, 33. see note Ex parte supra contingent required permission upon when was (2002) 50, 878, 149 Ohio 775 N.E.2d 884 App.3d (trial reporter's presence/general requires record); required statute court court to make a Stolarick recorded); proceeding court be Mattocks v. Mat- Novak, 171, v. 401 584 A.2d 1034, Pa.Super. 1038, (1991) (1999) (a (by required fn. 1 S.W.2d statute tocks, 77, 66 986 890 Ark.App. be record of such interviews must made as re- settled). part recorded and made of record-well statute); quired by administrative rule or N.D. Haase, 671, Haase v. 20 S.E.2d 585, 460 Va.App. (because (if (1995) 1, v. see note at 1201 objection RJ.H., 590 interview held over supra part proceedings interview is of court must be made); record Rose, must be Rose v. see parties, recorded and made available to after (when 26, note consent is not obtained supra court); record); Seelandt, 8, the fact and to the Strain v. must Seelandt v. see note appellate Gingrey Strain, 23, Lamer, see note v. 315 (either supra.; record have trial court supra report 486, 478, 186, 248 IIl. Dec. 734 N.E.2d said); gist Marriage Ill.App.3d of what was In the Matter of (2000) (reversible 188 error if interview is not Remillard, 1111, 651, Or.App. 30 569 P.2d part and made of record because the transcribed (in (1977) upheld 653-54 chamber interview prejudicial absence of a would be to prefer- where trial court at least summarized granted custody party pro- who is not record). ences determining vides no means whether the trial ways suggested Other have also been as an alter- court's decision constituted an abuse of discre- recording including ways native to for counsel to Slavenas, tion); Marriage Ill.App.3d In re 139 mirror, one-way observe such as the use of (1985) 581, 914, Ill.Dec. 487 739, 93 N.E.2d 741 closed circuit camera. N.D. v. RJ.H, 1, see note (making mandatory a record is and cannot be supra. Kentucky Appeals, Court of in an waived); Seniuta, 408, Ill.App.3d v. Semiuta 31 unpublished opinion though held that even 261, (1975) (to protect right 334 N.E.2d 267 parents observed the interview on closed circuit appeal, must make record or at least state for the monitor, it must be transcribed and made avail- were). record what child's statements Woods v. Fields, parties. able Fields v. 2008 WL Woods, 31, (shall record); supra note see G.S. v. Cir.2005) (La.App. T.S., 1088, 900 So.2d 1094 3 (reversible record); error not to v. Watermefer Garwood, 34. Walker-Seaman v. 456 So.2d 1331 (without (Fla. (interview Watermeier, 24, see note tran- App.1984) could be considered supra script, appellate court would be forced to trust counsel, parties stipulated parties, where that the completely without reservation the discretion of present); or court would not be In re reporter contrary the trial which would court to adver- Armbeck, 8, Marriage supra. See also Virusso, system); Mass.App.Ct. sarial Abbott v. 68 31, Jacquay, (by supra Truden v. note statute trial 326, 52, (2007) (due process 862 N.E.2d 61 re- deciding full has discretion in quires recording parents): and available recorded); should Branch v. Branch, (mother Kumke, 304, Kumke v. 11 648 N.W.2d (Fla.App.1994) So.2d 631 386 Neb.App. 797, (2002) statute, (pursuant 802 must be objection waived to interview re- waived). recorded and cannot be See Nowak v. porter present); Denningham Denningham, v. 49 328, (1981) Nowak, 29, Shaw, and Shaw v. Md.App. 431 A.2d fn. 3 supra 29, (unrecorded supra in camera interview (can waive of court but better presence reporter, upon by could not be relied trial court where practice complete is to record so that record is parties objected conducting interview in the appeal). available on reporter); absence of counsel and court Gazdick Gazdick, $o.2d (failure (Fla.App.1990) 1249, v. 557 222 (Ala.Civ. King King, v. 636 So.2d provide transcript (if consent, was harmless when trial App.1994) request but do not rely upon court did not children's conducting a court no error inter- reporter, view); Pearson, decision); 336, making Kan.App.2d Robison v. 841 So.2d Talbot v. Lanford, 1119, Cole, (Miss.2003); 1125-1126 (2004) (failure Williams P.3d to record not error (Mo.1979) (must 590 S.W.2d be record- contemplates request); because statute Dickison considering ed and cannot be waived because Dickison, P.2d Kan.App.2d testimony improper unrecorded would be (1994) (better record); practice Feffig is to preserve preclude meaningful failure would Feitig, (Tex.Civ.App.1981) 619 SW.2d (if made, review); no for record is Duncan, Duncan 528 S.W.2d the issue is (statute (Mo.App.1975) required interview to waived). record); part Sager, be made Schiele v. 106.4(A), (1977) (error 20 O.S. Title Mont. record); supra. Hamdan, hold and not Romi v. 70 AD.2d 417 NY.S.2d (reversible Supp. error trial court relied on child 37. Title 43 O.S. where *11 1) If trial court or the consider the the the conflicts between fully resolve do not possibility of an in camera interview of having an in parental due children, pursuant then the trial with the child's interview transeribed camera § must make and state instance, to 43 0.8.2001 For 48 O.S8. heard. right to be preliminary record its determina- 113,38 expressly ad § does not Supp.2002 concerning whether the child's best tions holding an in cam parental consent dress by conducting such an in interest is served do is: does era interview. What child is comera interview and whether the 1) to determine that the require the court intelligent age to form an sufficient child will be served interest of the best preference; expressing preference; 2) parents If to the interview consent 2) trial discretion generally give the chambers, being in or otherwise waive if preference unless to consider child's may presence, judge proceed their own age, [presumably child is of sufficient with an in camera interview. older], in which case the court is 8) parents object If one or both expression of required to consider excluded, the trial court must consider testimony; preference or other present. whether the want counsel whether This consideration should include 3) expressly present, counsel to be allow present, allow counsel to be allow coun- lawyers if are not provides but child, question or allow counsel sel interview, the reasons for allowed questions to be asked. Whether to submit expressly be stated their exclusion must partici- the trial court allows the counsel to court;39 the trial questioning questions pate or submit 4) preference bind in no case is the child's within the trial court's discretion. If no only or the factor the ing on the court issue, objection regarding is made this consider; court should objection parties waive to the issue on appeal. judge proceeds If the with an in 5) age if the child is of sufficient to form present, camera interview without counsel intelligent preference, and the court $ pursuant to 48 the reason 0.8.2001 preference, not follow the child's does exclusion must be stated on for counsel's specific findings fact court shall make the record. requested by if ei supporting such action 4) The next issue to be considered on the party; ther record is whether either or both party request either also that a request reporter present. that a court proceedings of the in chamber made, reporter If a made, the statutes do not address but reporter present must be and the party or if the is entitled to access interview shall be recorded-otherwise transcript.42 objection parties waive to the issue on appeal. provide proper 119 In order to process rights

balance of Although adopt guidelines we these heard, hereby right adopt we today, we realize that trial courts have not following guidelines for trial courts to fol previously had uniform Nevertheless, planning utilize when to conduct an in cam following guide low. these preference era custodial or visitation child lines will set forth the due standards objections from which we will measure to or interview: Supp. supra. see note 38. Title 43 O.S. 40. Title 43 O.S. Supp.2002 supra. § 113, O.S. Title 43 supra. Hogue Hogue, 2008 OK CIV APP Supp.2002 § 41. Title 43 O.S. Appeals the Court of Civil 190 P.3d 1177 supra. court's on the record noted that trial statement open be more and candid in that child would discussing his with the § 113, 43 O.S. Title 106.4(A), Supp.2007 § attorney's supra. 20 O.S. Title was sufficient reason stat- ed.

157 allegations concerning process parties, due issues in able to the and if Again, so when? procedures custody/visitation vary cases all future cases in from state to state. states, some the record already must be made cluding appellate pipel those avail parties.44 able to words, ine.43 In other record be sealed from parties, but IL. must be made appellate available for review protect an effort to the children's confiden THE A UNLESS PARENTS OR PARENT tiality, providing while still appel a basis of THE APPEALS CUSTODY/VISITA- late protect parents' review to process DETERMINATION, TION DUE PRO- righ Transcribing the matter and ts.45 REQUIRE CESS DOES NOT THAT making court, it available to the but not to EITHER PARENT HAVE ACCESS parties, satisfy could process the due THE TO TRANSCRIPT THE OF IN requirement stated in 20 O.S. CAMERA THE INTERVIEW OF 106.4(A).46 Rarely parties are the com CHILDREN MERELY TO SATISFY pletely precluded knowing from ever what CURIOSITY. transpired in the interview.47 made, ques 121 Onee a record is 122 Our research reveals Jersey one New tion becomes whether it must be made directly point, avail case on agree and we with its parties, record must be made and available 43. Grant, Resolution Trust v. 1995 OK 68, Corp. 122, 807; Harry Rose, 26, 901 P.2d R. Carlile parties); (if Trust v. to supra Rose v. no 16, 16-19, Corp., Cotton Petroleum 1986 OK MM consent to interview per- must make record and 732 P.2d 438. parties by way mit access to it of accurate or summary opportunity verbatim for either (record RJ.H., ND. v. see note 1 must supra party accuracy to contradict of the facts parties appellate be made available to the and Inscoe, given); 396, App.3d Inscoe v. 121 Ohio meaningful appellate court because a review can 70, (1997) (without 700 NE.2d 86 access to only be had if there is a record allows the interview, transcript cannot effective- parties challenge, appellate and the court to ly challenge a trial court's determination of the evaluate, reasoning the evidence and that under- interviewed). reasoning ability of the child decision); Marriage lies an adverse In re Hin- 228, denburg, 187, Il.App.3d 227 169 IIl.Dec. 67, (1992) (record 591 N.E.2d 69 (re- must be made v. Pizzalato, see note 31, Fernandez supra record, parties, versible immediately); suggest available to the but not error not to but trial court could have sealed and made it (Ky. Chenault, Holt v. 722 S.W.2d 897, 898-99 1987) sealed, (may review); not be Lanford, must be made avail- available for Robison v. see parents' 33, prejudicial); (record able to made, supra counsel-otherwise note must be but trial George's County Nutwell v. Department Prince court's discretion whether to seal or unseal for Services, 100, 563, Md.App. Social 21 review.); Willis, 318 A.2d 33, supra; Willis v. (1974) (unless waived, 568 must be recorded Donovan, and 615, App.3d Donovan v. 110 Ohio 674 counsel); parties shared with Abbott v. Vi- 1252, (1996), Myers Myers, N.E2d 1255 (due russo, 26, and funda- supra 170 Ohio 436, 867 N.E.2d 848, 855-56 App.3d requires mental fairness interview be recorded (2007) record, (required kept except but sealed Kuzara, provided parties); Kuzara review); court Franco v. Franco, 81 appellate (1984) (when Mont. (if (Tex.App.El S.W.3d 319, 332 Paso interviews, finding record and should re- sealed, must be purpose unsealed for limited flect emp- child's wishes-otherwise interview is Bellavia, briefing appeal); issues in Ladd v. exercise) Muraskin, ty Muraskin v. 336 NW.2d (tran- A.D.2d 1015, 542 N.Y.S.2d (N.D.1983) (sealing record from script only should be sealed and made available concerns); raises serious due In re Mi- appellate unless trial court directs oth- C., (R.1.1989) (tran- chael 557 A.2d erwise); Wright, Sellen v. 229 A.D.2d counsel, script read to who were (1996)(transcripts N.Y.S.2d sealed and questions then allowed to submit written reviewing only). made available to cross-examination); Caller v. Gill, see note 8, (trial supra properly court cannot refuse to dis- 106.4(A), 46. Title 20 O.S. obtained) close information See also Lavene v. 3, supra. Lavene, 148 N.J. 372 A2d 629, 631 Super. (1977) (judge capaci- must disclose: if child has made; it; ty; judge rely was did Brooks, Blue v. 261 Ind. 338, 303 N.E.2d thereof); (Ind.1973) (so long reason for reliance and extent as it Stolarick is clear that trial primarily (interview court's decision did not rest Novak, see note must be supra record); transcribed and made Haase v. results of the interview, no error in ex- part private cluding (if objection the results of the Haase, interview from the done over supra 5:8-6, Sathe, N.J.Super. process and R. would mands of due In Uherek result. ability (2007), court's jeopardize cert. denied tend A.2d *13 Uherek, 72, 926 A.2d 856 of a child's exposition N.J. a full and frank gain Uherek father, a (2007), whether Simple addressed common preferences the court and views. of mar years children, after dissolution nearly put four suggests that who are sense trial transeripts of the to riage, was entitled of asked their predicament parties' the interview with judge's in camera battle, more custody in a will preferences rule,48 Jersey like Okla The New child. the their views outside openly express 113," 48 O.S. homa's statute attor- parents or their presence of their to transcripts provided allowed for gaining the neys. In the interests of both payment of parties upon the and the counsel protecting evidence available best underpinnings considering the After costs. matters, right privacy to such child's obligation to conduct such judge's trial of the openly. This speak free to child should be right litigant's with the an interview balanced verbatim likely to occur if the child's is less know, the court stated: to readily Of available comments litigant's attempt true that a ... it remains course, permits recognize that R. 5:8-6 we expressed to the a child has to learn what when there release of such information would, honored, little but in- if do But, custody proceeding. ab- pending ais private child's communications vade the circumstance, there is no exist- sent permitted ought absent a not be turnover, ing even to a basis for such a custody dispute. pending private parent, the child's communi- of in camera because interview occurs The create and we find no reason to cations degree privacy of child entitled to right supplied.) (Emphasis here. such possible, preserves, so far as which Uherek, {23 supra, Like the father in Laveng, expression." child's "freedom of transeript not seek the petitioner here does 272, 372 A.2d 629. supra, Super. 148 N.J. at custody rely dis- to on for more private statements To render such fact, lodged appeal has been by pute. de- no readily required than available children, Gauck, custody hearing record); Mich.App. conduct the of Wilson v. hearing (1988) (court family prior action final must state whether N.W.2d 582 custody family part action. As capable expressing entire was preference, but the court considered hearing, motion or at on its own may litigant preference); an in camera required Le of a conduct not to disclose was child(ren). with the In the absence Lesauskis, sauskis Mich.App. (due good is not vio- to conduct an inter- cause, the decision N.W.2d process allowing by or re- counsel or be made before trial. If the court lated view shall interview, cording the best interest of the child it shall because elects not to conduct an any possible parent's outweighs place benefit If the court its reasons on the record. interview, Myers, right appeal); Myers it shall afford elects to conduct an transcripts supra (parents entitled to see questions are not opportunity to counsel the submit trumps the the best interest of the child during because the interview and shall the court's use parental which must be flexi- asking due place record its reasons for not (Utah ble); Shiofi, stenographic any question thus submitted. A Skiofi (parties stipulate to interview and fact inter- recorded record shall be made of each or made available for that it won't be recorded or entirety. Transcripts thereof shall in its view review). upon parties provided and the to counsel However, payment request and for the cost. reveal the con- Sathe, in Uherek v. shall discuss nor The neither N.J.Super. (2007), cert. denied or third 917 A2d tents of the interview with the children 926 A2d permission Uherek, Uherek v. 192 NJ. of the court. Coun- (2007), Jersey 5:8-6 is a that the New R. *14 parent ing transcribed, either have access to the tran- parties will be entitled script of the in camera interview of if, transeript only parent access to the parents appeal custody/visitation merely satisfy curiosity. children de their Otherwise, termination. the tran script remains sealed is within IH. the trial Here, court's discretion. the father did hot OKLAHOMA SUPREME COURT RULE appeal custody, award of and he is not 1,33, 15, App. 12 00.98.2001Ch. 1 IS required given access to transcript HEREBY AMENDED TO ADDRESS merely satisfy curiosity. his Oklahoma ACCESS TO TRANSCRIPTS OF IN 0.$8.2001 Supreme 1.33, Court Rule Ch. CAMERA IN PROCEEDINGS CHILD 15, App. 1 is amended to holding. reflect our DISPUTES. CUSTODY/VISITATION Today's holding necessitates that we ASSUMED; ORIGINAL JURISDICTION (f) add subsection and amend Oklahoma Su PETITION FOR WRIT OF MANDA- 0.$8.2001 1.33(e), preme Court Rule Ch. DENIED. MUS OKLAHOMA SU- 15,App. 1 as follows: PREME COURT RULE 1.33AMEND- (f) by Access to the Record Parties or ED. Custody/Visitation Disputes. Counsel EDMONDSON,C.J., TAYLOR,V.C.J., parent appeal custody When intends to HARGRAVE,KAUGER,WINCHESTER, or visitation determination and the trial REIF, JJ. concur. previously court has held an in camera children,

interview with the child or and a OPALA, COLBERT, JJ., part concur in transcript of proceeding was taken ei- part. and dissent by ther order of the trial court or WATT, J., dissents. parties, transcript of the shall provided parties upon request TAYLOR, V.C.J., OPALA, J., with whom payment taken, of costs. If no joins, concurring: is within the trial court's discretion wheth- er to allow parties access to the tran- T1 I majority opinion concur in the seripts. emphasize write further pre- the need to

serve basic process fundamental due in child custody proceedings. CONCLUSION «[ 106.4(A) 25 Neither 20 0.8. T2 Child decisions are one of the 113(C) Supp.2002 § nor 48 expressly 0.8. most serious determinations a trial parent-child undertakes. The requires that a relationship is provided with a transcript of a trial court's in camera lost, inter on the line in each of these trials. Once custody/visitation view proceeding. relationship is difficult to restore. These 1.33(e) Supreme 50. Oklahoma Court Rule instruments on file in the trial court on such ©.$.2001 currently Ch. ends with may impose. terms as that court (e) provides: subsection which e) Access to the Record Parties or Counsel. 106.4(A), Title 20 O.S. Until a uniform rule of has been supra; Supp.2002 § Title 43 O.S. promulgated by this shall 6, supra. have access to the and to the bound parents and the rights of both the process in a manner conducted must be trials Nothing violated. less is child have not been process assure acceptable. respected. the child [3 to interview determining whether WATT, J., dissenting: or counsel child without today's opinion and I both from ' 1 dissent objection, parent's and over one change. Although proposed rule from the long-held begin with two must trial court plethora majority gives lip service to a is that court law. The first principles in our - serves why an in camera interview reasons upon evi- are based

judgments and verdicts interests, today, opinion its the child's best with all due open court presented dence change rule well sound proposed principle This rights guaranteed. utilization of this in- knell to the the death against private, warns open trial in an contested child custo- tool future valuable secret, proceedings. confidential agree I cannot with the dy matters. also basic funda- that a has The second is changes implementation of rule immediate rights that include the mental due *15 appellate pipeline, altering the causes in the by the evidence used right to be informed of in situations which involve rules midstream in deciding in the contested issues judge the youth already have raw who the emotions right to re- parent A has basic a case. rigors through been the difficult associated any that be adverse spond to evidence proceedings. placement with Any position. variance from parent's not be long-standing principles must these change rule most cer- opinion T2 The and lightly undertaken. destroy principle for tainly the foundational hearings" "in camera with courts to conduct mind, in when a principles these 4 With principle the children which is also basis child, judge interview the parent asks the decision, any custody "the best for judge preliminary make a determi- must Today's or- interests of child/children". interest of whether the child's best nation only the trial court of its discre- der not robs by conducting an camera interview in served destroys vital tion also the court's most but judge must consider sever- of the child. The making regard to eusto- tool in decisions deciding to conduct questions al in obtaining of the child dy and that is the trust compe- interview. Is the child an in camera promise longer judge No can a or children. give the interview? respects tent in all protection of CONFIDEN- degree by par- Has the child been influenced either likely TIALITY so that a child will be more anticipation in of the interview? Is the ent forthright expressing in his and honest seek- interview the most effective method of during pro- these in camera or her views fact-finding truth in the ing the absolute ceedings. findings All must be made process? of these part of the trial record. expressed adopt I would the rationale App.3d Myers Myers, in 170 Ohio deter- preliminary

15 In addition to these stated, the court as fol- N.E.2d where minations, objects to a when either lows: being interviewed in camera attor- parents parents' of the or the absence in camera inter- requirement The that the designed protect a full be recorded is neys, judge the trial must conduct and views due-process rights parents. objections any of the complete hearing on the and due-process protection is achieved objections make a clear The responses to the and transeript by sealing **856 the ruling objections give and the reasons this context on the making and findings, of the in camera interview ruling. preliminary for only review. rulings available rulings, and the basis for the should appellate courts to re- This allows part be made of the record and should proceedings in camera interview appeal if an view the appellate included in an record reasonableness, while rulings and ascertain their findings and taken. These and allowing the child to "feel safe met the still record insure that the trial has expressing opinions his insuring fundamental due comfortable obligation of openly honestly, and subjecting have been made applicable in the cause and any psychological the child to additional prospectively petitions to all for certiorari loyalty trauma or conflicts." thirty days filed publication after final OklahomaBar Journal.1 [4 Accordingly, sealing and its inclusion in the record on T Accordingly, I dissent. appellate review courts in Oklahoma using an abuse discretion standard of protect review would and best

interests of the children affording while also right process. their of due By today's opinion change, and rule complete par-

absent waiver all of the ties, hearings" "in camera as we have known 2010 OK 46 them for disappear. decades will K.S., In the Matter of M.S. today's pronouncement T6 With and rule Deprived Children. change, only either need file their error, fee, petition pay filing and ob- Puyallup Indians, Tribe of pay copy tain transeript for a Appellant, Plaintiff/ then free to "beat the over child/children the head with it" for comments made to the judge in ap- chambers. When there is no Oklahoma, Defendant/Appellee. State of peal, proposed rule allows *16 103,921. No. that the trial court release the tran- seript responsi- when no is filed. No Supreme Court of Oklahoma. ble would want access to re- June to, they sults unless intended at some future date, against use the child or a former

spouse. order, today's

T7 Under thousands of chil-

dren, best, at will leave the courthouses

across this state with a bitter taste their judicial or, worst, system

mouth for the at physical searring

result mental or that will

remain for the rest of their lifetime. Furthermore,

T8 instead of protecting the interest, acting

children and in their best

warring parents, consumed with bitterness

for one another will now use their children as

weapons in their domestic battle with the

opposing spouse. Finally, way any to determine many

how children will having be affected thoughts

their innermost warring revealed to

parents, majority imposes changes upon children,

parents, and trial courts to which

they guide had no notice when it makes the applicable

lines "in all including future cases already appellate

those pipeline." past, changes when rule have been im

posed unsuspecting litigant, the rules Leonard, Hough 1993 OK 867 P.2d 438. notes right provide the tran- sel shall have rule, lengthy consisting eleven sentences and any expert script or its contents to retained words, portions quotes be- but the relevant custody. Any judgment or order the issue of low: hearing as a pursuant to this shall be treated custody. judgment [R. order 5:8-6 final custody that the chil- Where the court finds issue, added).] (emphasis genuine dren is a and substantial hearing date no later than six court shall set responsive pleading. 43 O.S. 49. Title months after the last may, protect interests the best order Rather, regarding custody. he seeks the When an in camera proposed, interview is transcript merely satisfy curiosity. process implications his due arise and a balane- agree ing We with the rationale utilized process rights due with the Jersey New and decline to right create a to be heard and the court's pursuant right transcripts Supp. to 48 0.8. interest from required. the child is Because these fully custody statutes do not $ pending dispute. resolve 113 absent a Accordingly, conflict, we hold that unless a this we have proper set forth the parents appeal or visitation for trial courts to utilize when conducting such determination, proceed interviews. If the require does not