Facts: Husband and Wife, the parents of three children, divorced after 20 years of marriage.

Wife was represented by counsel while Husband represented himself.

Wife sought and obtained an order of protection because of Husband’s abuse to her and the children.

Because of the history of domestic violence and the trial court’s findings that Husband physically and emotionally abused the children, the trial court questioned the two minor children, then 16 and 15 years old, in chambers in the presence of the guardian ad litem and the court reporter.

Neither Wife, Husband, nor Wife’s counsel could attend the trial court’s questioning of the children, although they could submit written questions beforehand. The children’s testimony was transcribed and sealed. Neither party was able to review the children’s testimony.

The trial court awarded custody of the children to Wife and prohibited Husband from contacting the children. The children, however, may contact Husband at their discretion.

Husband appealed.

On Appeal: The Court of Appeals found error but still affirmed the trial court.

Husband argued the trial court erred in declining to allow him to question the children.

Tennessee law gives the trial court discretion to interview a child outside the courtroom setting if the court finds it to be in the best interest of the child. If the trial court elects to follow this procedure, however, the trial court must examine the child in the presence of attorneys for each side and in the presence of the court reporter. To have a complete record on appeal, a transcript of the testimony must be filed.

Tennessee law recognizes that the right to have counsel physically present during a judge’s interview of a child is a substantial right implicating the litigant’s right to due process.

The Court held that while it was error for the trial court to exclude Husband and Wife’s counsel, it was not reversible error:

Initially, we recognize that the trial court took steps to ensure fairness to the parties and proper procedure. The record contains a sealed transcript of the children’s testimony in chambers, which facilitates appellate review. The trial court also invited the parties to submit questions. Nevertheless, we are troubled by the trial court’s decision to exclude Wife’s counsel and Husband, acting pro se, and the attendant due process implications.

This is perhaps an unusual scenario. Given Husband’s history of domestic assault, the trial court understandably was hesitant to subject the children to his interrogation. We do not take issue with the trial court’s decision to not permit Husband to directly question the children.

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The children’s welfare is of course a high priority, but the due process rights of the parents may not be ignored either.

As a result of the procedure adopted by the trial court, the parties had no access to or knowledge of the children’s testimony. It was sealed and made unavailable to them but it was considered by the trial court. Although Wife’s counsel and pro se Husband were allowed to submit questions beforehand, that is no substitute for being there. . . . We hold that the trial court erred in excluding Wife’s counsel and Husband, acting as his own counsel, from chambers during the children’s testimony or, at a minimum, providing some method for Wife’s counsel and Husband, pro se, to be able to observe the testimony live from a location other than the judge’s chambers.

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Not all error is reversible. Rule 36 of the Tennessee Rules of Appellate Procedure provides that a final judgment “shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” The trial court clearly relied on a host of other testimony and evidence in arriving at its conclusions regarding parenting. We hold that the trial court’s error in questioning the children outside of the presence of Wife’s counsel and Husband, pro se, or in the alternative, providing some means for them to observe the children’s testimony live was error, but under these circumstances, not reversible error.

The trial court’s judgment was affirmed.

K.O.’s Comment: In Maxwell v. Woodard, the Court of Appeals approved the trial court’s decision to exclude the parents from the child’s testimony in chambers where the guardian ad litem said their presence would make the child “deeply uncomfortable.” In Maxwell, however, the parties’ attorneys were present. That was not the case here.

Robbins v. Robbins (Tennessee Court of Appeals, Eastern Section, August 16, 2018).