A Case in Point

Norma and Edward Bates divorced and established joint custody of their daughter. Less than a year later, Edward moved for a change of custody to award sole custody to him. The trial court considered the child representative's (CR) report, the exhibits, testimony of the experts, parents and nonparties, and arguments of counsel, and ordered custody changed to the father. The court found that the father had proved by clear and convincing evidence that the “the child's present environment seriously endangers her physical, medical, moral, or emotional health, and that a substantial change of circumstances has been proved by clear and convincing evidence, and that it is in the child's best interests that respondent have sole custody.” He ordered that visitation be abated pending a recommendation by the CR and an appointed doctor and that the father consume no alcohol under further order by the court. The mother appealed.

During the trial, Norma made a motion to have the court order the CR to testify or, alternatively, to have the statute under which the CR was appointed declared unconstitutional. The trial court denied the motion and on appeal, Norma argued that her due process rights were violated because the statute allows the CR to submit a recommendation without testifying. Consequently, she was denied her right to cross-examine him about the underlying factual basis for his recommendation.