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Nevada Rules of Civil Procedure

Rule 16.215. Child Witnesses in Custody Proceedings

(a)     In General. The court must use these procedures and considerations in child custody proceedings. When determining the scope of a child’s participation in custody proceedings, the court should find a balance between protecting the child, the statutory duty to consider the wishes of the child, and the probative value of the child’s input while ensuring to all parties their due process rights to challenge evidence relied upon by the court in making custody decisions.

(b)     Definitions.

(1)    “Alternative Method.” As used in this rule, “alternative method” is defined as prescribed in NRS 50.520.

(2)    “Child Witness.” As used in this rule, “child witness” is defined as prescribed in NRS 50.530.

(3)    “Third-Party Outsourced Provider.” As used in this rule, “third-party outsourced provider” means any third party ordered by the court to interview or examine a child outside of the presence of the court for the purpose of eliciting information from the child for the court.

(c)     Procedure.

(1)    Identifying Witnesses. A party must identify and disclose any potential child witness whom the party intends to call as a witness during the case:

(A)   at the time of the case management conference/early case evaluation; or

(B)    by filing a Notice of Child Witness if the determination to call a child witness is made after the case management conference/early case evaluation.

(2)    Notice of Child Witness. A notice of child witness must be filed no later than 60 days before the hearing in which a child may be called as a witness unless otherwise ordered by the court. Such notice must detail the scope of the child witness’s intended testimony and provide an explanation as to why the child witness’s testimony would aid the trier of fact under the circumstances of the case. Any party filing a notice of child witness must also deliver a courtesy copy of the notice to the court.

(3) Testimony by Alternative Methods. If a party desires to perpetuate the testimony of a child witness by an alternative method, the party must file a Motion to Permit Child Testimony by Alternative Methods, under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq., at the same time as the notice of child witness, or no later than 60 days before the hearing in which the child witness may be called to testify or 14 days after the timely filing of a notice of child witness, whichever period last expires, unless otherwise ordered by the court. The court may also issue an order to show cause why a child witness should not testify by an alternative method or address the issue at any case management conference.

(d)     Alternative Methods.

(1) Available Alternative Methods. If the court determines under NRS 50.580 that an alternative method of testimony is necessary, the court must consider the following alternative methods, in addition to any other alternative methods the court considers appropriate under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq.

(A) If all parties are represented by counsel, the court may:

(i)   interview the child witness outside of the presence of the parties, with the parties’ counsel present;

(ii)         interview the child witness outside of the presence of the parties, with the parties’ counsel simultaneously viewing the interview via an electronic method; or

(iii)   allow the parties’ counsel to question the child witness in the presence of the court without the parties present.

(B) Regardless of whether the parties are represented by counsel, the court may:

(i)   interview the child witness with no parties present, but allow the parties to simultaneously view the interview via an electronic method if the court determines that the viewing is not contrary to the child’s best interest; or

(ii)   have the child witness interviewed by a third- party outsourced provider.

(2) Alternative Method Considerations. In determining which alternative method should be utilized in any particular case, the court should balance the necessity of taking the child witness’s testimony in the courtroom with the parties and attorneys present with the need to create an environment in which the child witness can be open and honest. In each case in which a child witness’s testimony will be taken, the court should consider:

(A)  where the testimony will be taken, including the possibility of closing the courtroom to the public or hearing from the child witness on the record in chambers;

(B)   who should be present when the testimony is taken, such as both parties and their attorneys, only the attorneys when both parties are represented by counsel, the child witness’s attorney and the parties, or only a court reporter;

(C)   how the child witness will be questioned, including whether only the court will pose questions that the parties have submitted, whether the parties or their attorneys will be permitted to cross-examine the child witness, or whether a child advocate or expert in child development will ask the questions in the presence of the court and the court reporter, with or without the parties or their attorneys; and

(D)    whether it will be possible to provide an electronic method so that testimony taken in chambers may be heard simultaneously by the parties and their attorneys in the courtroom.

(3) Protections for Child Witness. In taking testimony from a child witness, the court must take special care to protect the child witness from harassment or embarrassment and to restrict the unnecessary repetition of questions. The interviewer must also take special care to ensure that questions are stated in a form that is appropriate given the child witness’s age or cognitive level. The interviewer must inform the child witness in an age-appropriate manner about the limitations on confidentiality and that the information provided to the court will be on the record and provided to the parties in the case. In the process of listening to and inviting the child witness’s input, the interviewer may allow, but should not require, the child witness to state a preference regarding custody or visitation and should, in an age-appropriate manner, provide information about the process by which the court will make a decision.

(e)    Due Process Rights. Any alternative method must afford all parties a right to participate in the questioning of the child witness, which, at a minimum, must include an opportunity to submit potential questions or areas of inquiry to the court or other interviewer before the interview of the child witness.

(f)    Preservation of Record. Any alternative method of testimony ordered by the court must be preserved by audio or audiovisual recording to ensure that such testimony is available for review for future proceedings.

(g)    Review of Record. Any party may review the audio or audiovisual recording of testimony procured from a child witness by an alternative method upon written motion to the court or stipulation of the parties, unless the court finds by clear and convincing evidence that review by a party would pose a risk of substantial harm to the child witness.

(h)     Stipulation. The court may deviate from any of the provisions of this rule upon stipulation of the parties. The judicial districts of this state should promulgate a uniform canvass to be provided to the parties to ensure that they are aware of their rights to a full and fair opportunity for examination or cross-examination of a child witness before entering into any stipulation that would permit the interview or examination of a child witness by an alternative method, including a third-party outsourced provider.

(i)      Retention of Recordings. Original recordings of an interview or examination of a child witness must be retained by the interviewer for a period of 7 years from the date of their recording, or until 6 months after the child witness emancipates, whichever is later, unless otherwise ordered by the court.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

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