Hutchinson v. CobbAnnotate this Case
In 2008, the district court entered a divorce judgment that awarded primary residence of Mother and Father’s child to Mother with specific rights of contact to Father. After the initial divorce judgment was entered, the parties filed multiple post-judgment motions on issues of custody and visitation. A hearing was held on Mother’s latest motion to modify, in which the district court determined that the parties’ child was competent to testify. The testimony was taken in chambers and off the record. Based on the testimony, along with Mother’s testimony, the district court concluded that it was not in the child’s best interest to continue to have unsupervised contact with Father. The Supreme Court vacated the order, holding (1) a trial court may not, in a civil proceeding, and in the absence of an agreement of the parties, take testimony from a child witness in chambers and off the record; and (2) the court’s ultimate decision to modify Father’s rights of contact based on the testimony was error, and the error was not harmless.