Kes, f/k/a Ket v. Cat

Summary

The Wyoming Supreme Court reviewed a custody modification awarding custody to the father after the parents' circumstances and the child's living arrangements changed. The court upheld the finding of a material change in circumstances but held that the district court violated the mother's due process rights by conducting an in camera interview with the child over her objection without adequate procedural safeguards. The custody order was reversed and remanded for further proceedings.

Holdings

1. A party seeking modification of custody must show a material change in circumstances affecting the child's welfare and that modification is in the child's best interests; proof that the child was harmed is not required. The changes in the child's living circumstances, together with the parents' circumstances, constituted a material change affecting the child's welfare.
2. When a parent objects to a private interview between the child and the judge in a custody proceeding, the court may not conduct the interview without a procedure that protects the parent's due process rights. The district court abused its discretion by conducting the interview over Mother's objection without safeguarding her ability to know, examine, explain, or rebut the evidence obtained.
3. If a parent objects to a private interview, the parties or court must use an alternative procedure that protects due process and minimizes stress to the child. If the parties cannot agree, the court may interview the child in chambers with counsel present and must ensure that the record reflects the child's competency, stated preference, and the weight assigned to that preference.

Questions Presented

1. Whether Father proved a material change in circumstances affecting the child's welfare sufficient to support modification of custody.
2. Whether the district court abused its discretion by changing custody based in part on a private, in camera interview with the child conducted over Mother's objection and without procedures protecting Mother's due process rights.

Disposition

reversed_and_remanded