Tuesday, February 5, 2008
Automatic Three Year Review of Child Support
Regardless of whether one receives child support or whether ordered to pay child support, both parties to a case are entitled to an automatic three year review of child support pursuant to NRS 125B145. This can be addressed either amicably through counsel or via filing a motion with the court. Remember that this review is an independent review and does not require an accompanying child custody moficiation.
Three Common Approaches for Determining What Constitutes Legitimate Business Expenses for Child Support Purposes
By Vincent Mayo, Esq.
Nevada has a child support formula that makes it relatively easy to predict an obligor’s child support obligation based on gross monthly income. NRS 125B.070. This simple formula, however, becomes much more difficult to calculate with self-employed parents. The problem stems from trying to justify a self employed parent’s claimed business expenses.
Many states have established laws in regard to what constitutes income for self-employed parents. Unfortunately, given the varied treatment of this principle from state to state, attempting to establish a national consensus in regard to valid business expenses is of little help. Worse yet, Nevada has not articulated what constitutes justifiable business costs. NRS 125B.070(1)(a) merely states that a business expense must be “legitimate” in order for it to be deducted from the computation of gross income. The Nevada Supreme Court has directly elaborated on this concept. Fortunately, a better understanding of the reasons why courts choose to accept one business expense as legitimate and another as not legitimate can make addressing these issues easier on the family law practitioner. A review of sister-state opinions reveals three factors, or approaches, commonly taken into consideration by courts when making their determinations on what constitutes a legitimate business expense. These factors are: (1) whether the business expense is necessary to produce income; (2) whether the business expense is primarily a payment of a personal expense; and (3) whether the business expense unnecessarily reduces the income available to support a child.
Is the Business Expense Necessary to Produce Income?
This factor is perhaps the most widely used. According to the “necessary to produce income” approach, if an expense is not necessary to generate income, it is not a legitimate business expense. This factor typically comes into consideration when dealing with deductions that exists “solely on paper” for tax purposes and do not directly reduce an obligor’s available income. The most common “paper deduction” is depreciation of a business asset. Some courts recognize depreciation as a legitimate expense, depending on its purpose. For example, in Freking v. Freking, 479 N.W.2d 736 (Minn. Ct. App. 1992), a child support obligor sought to deduct accelerated depreciation (which allows greater deductions in the earlier years of the life of an asset) from his farm business. The Minnesota Court of Appeals permitted straight-line depreciation (which allows for a yearly deduction of the useful life of the asset) but not accelerated depreciation. The court reasoned that accelerated depreciation is in the nature of a tax fiction, unrelated to the useful life of an asset and intended only to generate tax savings. Id. at 740. See also Turner v. Turner, 586 A.2d 1182 (Del. 1991). Based on this reasoning, accelerated depreciation is not necessary to produce income. On the other hand, the court recognized straight line depreciation as being appropriate since it more fairly reflected the cost of producing income. See also In re Marriage of Davis, 679 N.E.2d 110 (Ill. App. Ct. 1997).
Other courts have been more restrictive on the definition of “necessary” to produce income and have not permitted any expense that does not actually reduce the obligor’s disposable income. The Supreme Court of Montana in Stewart v. Stewart, 793 P.2d 813 (Mont. 1990), held that depreciation losses could not be deducted as business expenses since depreciation for tax purposes is intended to assist an individual in regaining their expenditures. Therefore, it does not follow that it is a business expense necessary to produce income. Id. See also Asfaw v. Woldberhan, 55 Cal. Rptr. 3d 323 (Cal. Ct. App. 2007).
In contrast, expenses that can be shown to directly result in the production of income are considered necessary and, therefore, are commonly allowed. In Bower v. Bower, 697 N.E.2d 110 (1998), the Court of Appeals of Indiana held that the obligor’s promotional, travel, and accounting expenses directly resulted in an increase to his income. The Court reasoned that as the obligor’s income would not have been what it was without the costs, it would be unjust to not allow the obligor to deduct them. Id. at 115. See generally In re Marriage of Davis, 679 N.E.2d 110 (Ill. App. Ct. 1997) (which considered, as part of evaluating whether an expense is necessary, whether the expense was also reasonable). Critical to the court’s approach in Bower was the question of whether the expenses would not have been incurred “but for” the employment. Id. at 115. There are a vast array of other potential deductions to be claimed (business loans, principal and interest on mortgage and assets, initial acquisition costs of new venture, insurance premiums, etc.). Analyzing whether these, as well as other costs, are a legitimate deduction can be accomplished by use of a “necessary to produce income” approach.
Is the Business Expense Essentially Payment of a Personal Expense?
This factor is also widely recognized. The “personal expense” approach is similar to the “necessary to produce income” approach yet differs from it in that courts will focus on whom the deduction primarily benefits, not on how necessary it is to generate income. In other words, although a personal expense can also be used to generate income, if its use is primarily for payment of a personal expense, it is not considered an appropriate deduction of gross net income to the obligor.
The Alaska Supreme Court’s reasoning in Coghill v. Coghill is a classic example of this principle. In Coghill, the Alaska Supreme Court upheld the decision of the Superior Court when it found that business expenses were primarily for the benefit of the parent, not the business. 836 P.2d 921 (Alaska 1992). In Coghill, the obligor claimed his meals and clothing expenses were necessary to operate his business. The Alaska Supreme Court stated that although such costs can constitute a legitimate business expense, the obligor’s expenses were not legitimate since the meals were consumed by the obligor alone and since the type of clothing purchased by obligor was not significantly different from the clothing purchased by most Alaskans. Id. at 926. Other states have compromised in determining whether such expenses are legitimate by approaching the deductibility of a personal expense from a comparative view point. In other words, if the personal expense benefits the obligor while simultaneously benefitting the company, it will be apportioned so part of the cost is deductible and part is not. This was the case in Reinhart v. Reinhart, 963 P.2d 757 (Utah Ct. App. 1998). In that case, the Court of Appeals of Utah allowed only half of the obligor’s claimed educational and travel expenses as they significantly benefited the obligor himself in addition to the business. Id. at 759. This comparative reasoning, however, may not be deemed valid in Nevada based on the fact NRS 125B.070(1)(a) directs that personal expenses must be excluded from calculating gross income.
Will the Expense Unnecessarily Reduce the Income Available to Support a Child?
This factor tends to center on the overall fairness of the deductions to the child, not whether the deductions are necessary or personal in use. The “reduction of income available to support a child” approach focuses on the fact that although it may be fair to allow the deduction as necessary or that a personal expense also benefits the business, the overall effect is that the deductions come at the expense of the child’s financial welfare. Use of this factor typically comes into play when an obligor has wide discretion in manipulating deductions to set their own salary or when deductions in essence leave little funds available for child support.
In Rauch v. Rauch, 590 N.W.2d 170 (Neb. 1999), the Supreme Court of Nebraska recognized that although the obligor’s farming losses and use of funds to reinvest in his farm could constitute a necessary expense, “It would be unfair for Donald [the obligor] to benefit from his choice to incur debt and build equity in his farm at the expense of his children.” Id. The court stated that, “[t]he support of one’s children is a fundamental obligation which takes precedence over almost everything else.” This reasoning was also used by the Indiana Court of Appeals in Merrill v. Merrill 587 N.E.2d 1888, 189 (Ind. Ct. App. 1992). In Merrill, the court acknowledged that a self-employed obligor has the discretion to defer current income by incurring debt, and there could be situations in which there would then be very little income to be considered available for determining child support. Id. at 189.
Although the foregoing three factors are far from all inclusive, they are the foundation upon which most requests for deductions are made. Being familiar with and further researching these approaches will typically result in requested deductions that are not only well-reasoned but the most just to self-employed obligors as well as to their children.
Vincent Mayo, Esq. is an attorney at Pecos Law Group in Henderson, Nevada. Mr. Mayo represents clients in domestic relations law including divorce, complex custody disputes, relocation litigation, paternity, adoption, termination of parental rights, cohabitation, name changes and separate maintenance. Mr. Mayo can be reached at (702) 361-2318, or vincentmayovinc@aol.com.
Nevada has a child support formula that makes it relatively easy to predict an obligor’s child support obligation based on gross monthly income. NRS 125B.070. This simple formula, however, becomes much more difficult to calculate with self-employed parents. The problem stems from trying to justify a self employed parent’s claimed business expenses.
Many states have established laws in regard to what constitutes income for self-employed parents. Unfortunately, given the varied treatment of this principle from state to state, attempting to establish a national consensus in regard to valid business expenses is of little help. Worse yet, Nevada has not articulated what constitutes justifiable business costs. NRS 125B.070(1)(a) merely states that a business expense must be “legitimate” in order for it to be deducted from the computation of gross income. The Nevada Supreme Court has directly elaborated on this concept. Fortunately, a better understanding of the reasons why courts choose to accept one business expense as legitimate and another as not legitimate can make addressing these issues easier on the family law practitioner. A review of sister-state opinions reveals three factors, or approaches, commonly taken into consideration by courts when making their determinations on what constitutes a legitimate business expense. These factors are: (1) whether the business expense is necessary to produce income; (2) whether the business expense is primarily a payment of a personal expense; and (3) whether the business expense unnecessarily reduces the income available to support a child.
Is the Business Expense Necessary to Produce Income?
This factor is perhaps the most widely used. According to the “necessary to produce income” approach, if an expense is not necessary to generate income, it is not a legitimate business expense. This factor typically comes into consideration when dealing with deductions that exists “solely on paper” for tax purposes and do not directly reduce an obligor’s available income. The most common “paper deduction” is depreciation of a business asset. Some courts recognize depreciation as a legitimate expense, depending on its purpose. For example, in Freking v. Freking, 479 N.W.2d 736 (Minn. Ct. App. 1992), a child support obligor sought to deduct accelerated depreciation (which allows greater deductions in the earlier years of the life of an asset) from his farm business. The Minnesota Court of Appeals permitted straight-line depreciation (which allows for a yearly deduction of the useful life of the asset) but not accelerated depreciation. The court reasoned that accelerated depreciation is in the nature of a tax fiction, unrelated to the useful life of an asset and intended only to generate tax savings. Id. at 740. See also Turner v. Turner, 586 A.2d 1182 (Del. 1991). Based on this reasoning, accelerated depreciation is not necessary to produce income. On the other hand, the court recognized straight line depreciation as being appropriate since it more fairly reflected the cost of producing income. See also In re Marriage of Davis, 679 N.E.2d 110 (Ill. App. Ct. 1997).
Other courts have been more restrictive on the definition of “necessary” to produce income and have not permitted any expense that does not actually reduce the obligor’s disposable income. The Supreme Court of Montana in Stewart v. Stewart, 793 P.2d 813 (Mont. 1990), held that depreciation losses could not be deducted as business expenses since depreciation for tax purposes is intended to assist an individual in regaining their expenditures. Therefore, it does not follow that it is a business expense necessary to produce income. Id. See also Asfaw v. Woldberhan, 55 Cal. Rptr. 3d 323 (Cal. Ct. App. 2007).
In contrast, expenses that can be shown to directly result in the production of income are considered necessary and, therefore, are commonly allowed. In Bower v. Bower, 697 N.E.2d 110 (1998), the Court of Appeals of Indiana held that the obligor’s promotional, travel, and accounting expenses directly resulted in an increase to his income. The Court reasoned that as the obligor’s income would not have been what it was without the costs, it would be unjust to not allow the obligor to deduct them. Id. at 115. See generally In re Marriage of Davis, 679 N.E.2d 110 (Ill. App. Ct. 1997) (which considered, as part of evaluating whether an expense is necessary, whether the expense was also reasonable). Critical to the court’s approach in Bower was the question of whether the expenses would not have been incurred “but for” the employment. Id. at 115. There are a vast array of other potential deductions to be claimed (business loans, principal and interest on mortgage and assets, initial acquisition costs of new venture, insurance premiums, etc.). Analyzing whether these, as well as other costs, are a legitimate deduction can be accomplished by use of a “necessary to produce income” approach.
Is the Business Expense Essentially Payment of a Personal Expense?
This factor is also widely recognized. The “personal expense” approach is similar to the “necessary to produce income” approach yet differs from it in that courts will focus on whom the deduction primarily benefits, not on how necessary it is to generate income. In other words, although a personal expense can also be used to generate income, if its use is primarily for payment of a personal expense, it is not considered an appropriate deduction of gross net income to the obligor.
The Alaska Supreme Court’s reasoning in Coghill v. Coghill is a classic example of this principle. In Coghill, the Alaska Supreme Court upheld the decision of the Superior Court when it found that business expenses were primarily for the benefit of the parent, not the business. 836 P.2d 921 (Alaska 1992). In Coghill, the obligor claimed his meals and clothing expenses were necessary to operate his business. The Alaska Supreme Court stated that although such costs can constitute a legitimate business expense, the obligor’s expenses were not legitimate since the meals were consumed by the obligor alone and since the type of clothing purchased by obligor was not significantly different from the clothing purchased by most Alaskans. Id. at 926. Other states have compromised in determining whether such expenses are legitimate by approaching the deductibility of a personal expense from a comparative view point. In other words, if the personal expense benefits the obligor while simultaneously benefitting the company, it will be apportioned so part of the cost is deductible and part is not. This was the case in Reinhart v. Reinhart, 963 P.2d 757 (Utah Ct. App. 1998). In that case, the Court of Appeals of Utah allowed only half of the obligor’s claimed educational and travel expenses as they significantly benefited the obligor himself in addition to the business. Id. at 759. This comparative reasoning, however, may not be deemed valid in Nevada based on the fact NRS 125B.070(1)(a) directs that personal expenses must be excluded from calculating gross income.
Will the Expense Unnecessarily Reduce the Income Available to Support a Child?
This factor tends to center on the overall fairness of the deductions to the child, not whether the deductions are necessary or personal in use. The “reduction of income available to support a child” approach focuses on the fact that although it may be fair to allow the deduction as necessary or that a personal expense also benefits the business, the overall effect is that the deductions come at the expense of the child’s financial welfare. Use of this factor typically comes into play when an obligor has wide discretion in manipulating deductions to set their own salary or when deductions in essence leave little funds available for child support.
In Rauch v. Rauch, 590 N.W.2d 170 (Neb. 1999), the Supreme Court of Nebraska recognized that although the obligor’s farming losses and use of funds to reinvest in his farm could constitute a necessary expense, “It would be unfair for Donald [the obligor] to benefit from his choice to incur debt and build equity in his farm at the expense of his children.” Id. The court stated that, “[t]he support of one’s children is a fundamental obligation which takes precedence over almost everything else.” This reasoning was also used by the Indiana Court of Appeals in Merrill v. Merrill 587 N.E.2d 1888, 189 (Ind. Ct. App. 1992). In Merrill, the court acknowledged that a self-employed obligor has the discretion to defer current income by incurring debt, and there could be situations in which there would then be very little income to be considered available for determining child support. Id. at 189.
Although the foregoing three factors are far from all inclusive, they are the foundation upon which most requests for deductions are made. Being familiar with and further researching these approaches will typically result in requested deductions that are not only well-reasoned but the most just to self-employed obligors as well as to their children.
Vincent Mayo, Esq. is an attorney at Pecos Law Group in Henderson, Nevada. Mr. Mayo represents clients in domestic relations law including divorce, complex custody disputes, relocation litigation, paternity, adoption, termination of parental rights, cohabitation, name changes and separate maintenance. Mr. Mayo can be reached at (702) 361-2318, or vincentmayovinc@aol.com.
A Closer Look at the Uniform Child Witness by Alternative Method Act
by Vincent Mayo, Esq.
"Can’t my child just testify to the judge away from everyone? I know what he has to say would be helpful, but I don’t want him to have to take the stand." What family law practitioner has not heard this question from a distraught client in the midst of a child custody battle. While having a child "just testify to the judge" has a certain layman’s logic to it, limiting the circumstances under which a child gives testimony is a complex matter which pits the best interest of the child against the rules of evidence and the right to confront witnesses. Fortunately, in 2003, the State legislature provided Nevada family law practitioners a tool with which to navigate these competing policies in the form of the Uniform Child Witness Testimony by Alternative Methods Act.
The Alternative Methods Act
The Uniform Child Witness Testimony by Alternative Methods Act, or the "Alternative Methods Act," is codified in Nevada as NRS 50.500 through 50.620. The Alternative Methods Act authorizes a court to consider whether to allow a child to testify outside the presence of a party or normal proceedings when to testify otherwise would impair the child’s testimony or subject the child witness to distress. NRS 50.550 and NRS 50.560.
Although the Alternative Methods Act expressly applies to both criminal and non-criminal proceedings, the Alternative Method Act was in fact promulgated by the National Conference of Commissioners on Uniform State Laws to specifically include and apply to family law and juvenile proceedings as well. See the National Conference of Commissioners on Uniform State Laws, Uniform Child Witness Testimony by Alternative Methods Act (accessed April 3, 2007). However, the act does not apply to all children. In order for the Alternative Methods Act to apply to a specific case, a child must be under the age of 14. NRS 50.530.
Determining Whether to Allow Testimony by an Alternative Method
Once a party has determined that a child should testify in regard to a custody proceeding and the child’s testimony would best be elicited through an alternative method, a request that a child testify via an alternative method can be made through a motion. NRS 50.570(1). The hearing on such a motion is in the nature of a preliminary hearing or a motion in limine to determine only whether the testimony of the child should be taken by an alternative method.
In order to allow the child witness to testify by an alternative method, the court must find "by a preponderance of the evidence, that allowing the child to testify by an alternative method is necessary to serve the best interests of the child or enable the child to communicate with the finder of fact." NRS 50.580(2). The court, in making its determination, is to consider (a) the nature of the proceeding; (b) the age and maturity of the child; (c) the relationship of the child to the parties in the proceeding; (d) the nature and degree of emotional trauma that the child may suffer in testifying; and (e) any other relevant factor. NRS 50.580(2).
A key factor to this analysis is determining what "degree of emotional trauma" warrants the use of alternative method. Because the Alternative Methods Act itself does not define this concept, other sources are helpful. Perhaps the most persuasive precedent is found in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990). In Maryland v. Craig, the U.S. Supreme Court stated that presenting testimony by an alternative method is necessary to protect the welfare of the child witness when the child would suffer serious emotional stress and be so traumatized to the extent the child could not reasonably be expected to communicate in the courtroom or the personal presence of a party. The Court went on to state that when a trial court is considering whether the child’s anticipated distress will be substantial, it should decide whether the trauma to the child is more than de minimis. 497 U.S. at 855-56. In essence, such trauma must be more than "mere nervousness or excitement or some reluctance to testify." Id. at 855-56. See also Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).
During the initial hearing, a court is not bound by the rules of evidence in making its determination. Therefore, any number of exhibits can be used in support of or opposition to an alternative method request. NRS 50.570(2). A past child interview or evaluation can demonstrate a child’s level of maturity and the level of possible harm the child would suffer by testifying in open court. The report could show whether a child is articulate, withdrawn, confident, insecure, knowledgeable, honest, manipulative or frightened. Affidavits of individuals with information pertaining to the child might also be presented.
Academic performance is also helpful. Certificates of achievement for leadership, good attendance, timely turning in of homework, etc., are insightful and show intelligence and independence. In contrast, a teacher’s comments in a report card that a child is socially reclusive or overly-sensitive could warrant an alternative method. Participation in school sponsored clubs that promote leadership, academic success, school pride and community awareness are indicators of selflessness and maturity, and therefore that an alternative method is not required to protect the child.
During the initial hearing, it is possible that a party would want the court itself to talk to the child so that the court can determine what effect testifying would have on the child. This is permitted in NRS 50.570(2). In Clark County, nothing prevents a judge from interviewing the child outside the presence of counsel or the parents for whatever reason the court deems necessary. EDCR 5.06. This would technically be permissible as the Alternative Methods Act was intended to work in unison with existing state laws and not to override them. NRS 50.620. A judge’s choice to evaluate a child in chambers would help to achieve the desired result without forcing a child to, in essence, testify twice.
If the court finds that a child qualifies to testify by an alternative approach, it must then decide whether the child should in fact be allowed to testify by an alternative approach. NRS 50.590. In making this determination, the court must take into consideration whether (1) alternative methods are reasonably available; (2) means by which to protecting the child emotionally without resorting to an alternative method; (3) the nature of the case; (4) the rights of the parties; (5) the importance of the proposed testimony of the child; (6) the degree of emotional trauma that the child may suffer if an alternative method is not used; and (7) any other relevant factor. NRS 50.590. Although it is unclear in the statute, it is reasonable that these factors be addressed by the court at the same hearing that the NRS 50.570 request is made. Although emotional harm to the child is a paramount concern for the court, as addressed below, the impact on the rights of the parties cannot be overlooked.
Alternative Methods
What are alternative methods? The Alternative Methods Act defines an "alternative method" by what it is not. In other words, an alternative method is one which does not include all the following: (1) having the child testify in person in an open forum; (2) having the child testify in the presence and full view of the finder of fact and presiding officer; and (3) allowing all of the parties to be present, to participate and to view and be viewed by the child. NRS 50.520.
By the Alternative Methods Act’s very definition, the use of only one or a combination of two of the foregoing three factors would constitute an alternative method. Along these lines, the Alternative Methods Act would permit a judge to conduct an in-chamber, on-camera interview of the child with the attorneys submitting questions for the court to ask the child. Meanwhile, the parties would be allowed to watch the child’s examination. The judge could examine a child in open court with only the attorneys present. Counsel would have an opportunity to object if appropriate. Further, the attorneys would direct and cross-examine the child in open court with the parties waiting outside of court. The judge could also use a combination of these methods to best serve the goals of justice, minimizing the adversarial aspects of litigation and reducing the emotional impact on the child.
The Alternative Methods Act does not attempt to strictly define the method or methods by which face-to-face confrontation with the child witness may be avoided. NRS 50.500 through 50.620. The term is defined broadly. It encompasses alternative methods currently recognized across the country for taking the testimony of a child, such as audio visual recordings to be later presented in the courtroom, closed-circuit television which is transmitted directly to the courtroom, two way video conferencing or other arrangements that shield the child from direct confrontation with a particular party or the finder of fact. Nev. Sen., Minutes of the Senate Committee on Judiciary, 72 Session Nev. Leg. (February 11, 2003). The Alternative Methods Act also takes into consideration other similar methods either currently employed in the State or through technology yet to be developed or recognized in the future. NRS 50.560(2)(a).Whatever method is ultimately chosen, it must protect the parties’ due process rights and "permit a full and fair opportunity for examination or cross-examination of the child witness by each party." NRS 50.610. However, what constitutes a full and fair opportunity appears to be initially determined by the court. NRS 50.600(3) states, "The alternative method ordered by the presiding officer may be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order." Further, this provision does not impact upon other established state proceedings where the right to examine or cross-examine the child witness are already restricted or limited. NRS 50.560(2)(a).
Finally, the court’s order regarding testimony by alternative method has to specifically lay out the method to be used, the court’s reasons justifying the method and any special conditions necessary to facilitate examination of the child. NRS 50.600. By requiring an order to contain specific findings and state the procedures to be involved, the Alternative Methods Act ensures the court’s decision can be challenged and raised before the Nevada Supreme Court. Nev. Sen., Minutes of the Senate Committee on Judiciary, 72 Session Nev. Leg. (February 11, 2003 and April 15, 2003).
Conclusion
Because the welfare of the child witness is so important to the court and the parties, requesting that a child testify in a custody proceeding, even by alternative methods, cannot be taken lightly. A thorough consideration of what counsel hopes to achieve, whether the child is in a position to assist and most importantly what emotional trauma the child may suffer is critical to addressing the issue. Thoughtful use of the Alternative Methods Act is one way to give a child a voice while simultaneously shielding them from harm in perhaps the most significant legal proceeding of their life.Vincent Mayo, Esq. is an attorney at Pecos Law Group in Henderson. Mr. Mayo represents clients in domestic relations law including divorce, complex custody disputes, relocation litigation, paternity, adoption, termination of parental rights, cohabitation, name changes and separate maintenance. Mr. Mayo can be reached at (702) 361-2318, or vincentmayovinc@aol.com.
"Can’t my child just testify to the judge away from everyone? I know what he has to say would be helpful, but I don’t want him to have to take the stand." What family law practitioner has not heard this question from a distraught client in the midst of a child custody battle. While having a child "just testify to the judge" has a certain layman’s logic to it, limiting the circumstances under which a child gives testimony is a complex matter which pits the best interest of the child against the rules of evidence and the right to confront witnesses. Fortunately, in 2003, the State legislature provided Nevada family law practitioners a tool with which to navigate these competing policies in the form of the Uniform Child Witness Testimony by Alternative Methods Act.
The Alternative Methods Act
The Uniform Child Witness Testimony by Alternative Methods Act, or the "Alternative Methods Act," is codified in Nevada as NRS 50.500 through 50.620. The Alternative Methods Act authorizes a court to consider whether to allow a child to testify outside the presence of a party or normal proceedings when to testify otherwise would impair the child’s testimony or subject the child witness to distress. NRS 50.550 and NRS 50.560.
Although the Alternative Methods Act expressly applies to both criminal and non-criminal proceedings, the Alternative Method Act was in fact promulgated by the National Conference of Commissioners on Uniform State Laws to specifically include and apply to family law and juvenile proceedings as well. See the National Conference of Commissioners on Uniform State Laws, Uniform Child Witness Testimony by Alternative Methods Act (accessed April 3, 2007). However, the act does not apply to all children. In order for the Alternative Methods Act to apply to a specific case, a child must be under the age of 14. NRS 50.530.
Determining Whether to Allow Testimony by an Alternative Method
Once a party has determined that a child should testify in regard to a custody proceeding and the child’s testimony would best be elicited through an alternative method, a request that a child testify via an alternative method can be made through a motion. NRS 50.570(1). The hearing on such a motion is in the nature of a preliminary hearing or a motion in limine to determine only whether the testimony of the child should be taken by an alternative method.
In order to allow the child witness to testify by an alternative method, the court must find "by a preponderance of the evidence, that allowing the child to testify by an alternative method is necessary to serve the best interests of the child or enable the child to communicate with the finder of fact." NRS 50.580(2). The court, in making its determination, is to consider (a) the nature of the proceeding; (b) the age and maturity of the child; (c) the relationship of the child to the parties in the proceeding; (d) the nature and degree of emotional trauma that the child may suffer in testifying; and (e) any other relevant factor. NRS 50.580(2).
A key factor to this analysis is determining what "degree of emotional trauma" warrants the use of alternative method. Because the Alternative Methods Act itself does not define this concept, other sources are helpful. Perhaps the most persuasive precedent is found in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990). In Maryland v. Craig, the U.S. Supreme Court stated that presenting testimony by an alternative method is necessary to protect the welfare of the child witness when the child would suffer serious emotional stress and be so traumatized to the extent the child could not reasonably be expected to communicate in the courtroom or the personal presence of a party. The Court went on to state that when a trial court is considering whether the child’s anticipated distress will be substantial, it should decide whether the trauma to the child is more than de minimis. 497 U.S. at 855-56. In essence, such trauma must be more than "mere nervousness or excitement or some reluctance to testify." Id. at 855-56. See also Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).
During the initial hearing, a court is not bound by the rules of evidence in making its determination. Therefore, any number of exhibits can be used in support of or opposition to an alternative method request. NRS 50.570(2). A past child interview or evaluation can demonstrate a child’s level of maturity and the level of possible harm the child would suffer by testifying in open court. The report could show whether a child is articulate, withdrawn, confident, insecure, knowledgeable, honest, manipulative or frightened. Affidavits of individuals with information pertaining to the child might also be presented.
Academic performance is also helpful. Certificates of achievement for leadership, good attendance, timely turning in of homework, etc., are insightful and show intelligence and independence. In contrast, a teacher’s comments in a report card that a child is socially reclusive or overly-sensitive could warrant an alternative method. Participation in school sponsored clubs that promote leadership, academic success, school pride and community awareness are indicators of selflessness and maturity, and therefore that an alternative method is not required to protect the child.
During the initial hearing, it is possible that a party would want the court itself to talk to the child so that the court can determine what effect testifying would have on the child. This is permitted in NRS 50.570(2). In Clark County, nothing prevents a judge from interviewing the child outside the presence of counsel or the parents for whatever reason the court deems necessary. EDCR 5.06. This would technically be permissible as the Alternative Methods Act was intended to work in unison with existing state laws and not to override them. NRS 50.620. A judge’s choice to evaluate a child in chambers would help to achieve the desired result without forcing a child to, in essence, testify twice.
If the court finds that a child qualifies to testify by an alternative approach, it must then decide whether the child should in fact be allowed to testify by an alternative approach. NRS 50.590. In making this determination, the court must take into consideration whether (1) alternative methods are reasonably available; (2) means by which to protecting the child emotionally without resorting to an alternative method; (3) the nature of the case; (4) the rights of the parties; (5) the importance of the proposed testimony of the child; (6) the degree of emotional trauma that the child may suffer if an alternative method is not used; and (7) any other relevant factor. NRS 50.590. Although it is unclear in the statute, it is reasonable that these factors be addressed by the court at the same hearing that the NRS 50.570 request is made. Although emotional harm to the child is a paramount concern for the court, as addressed below, the impact on the rights of the parties cannot be overlooked.
Alternative Methods
What are alternative methods? The Alternative Methods Act defines an "alternative method" by what it is not. In other words, an alternative method is one which does not include all the following: (1) having the child testify in person in an open forum; (2) having the child testify in the presence and full view of the finder of fact and presiding officer; and (3) allowing all of the parties to be present, to participate and to view and be viewed by the child. NRS 50.520.
By the Alternative Methods Act’s very definition, the use of only one or a combination of two of the foregoing three factors would constitute an alternative method. Along these lines, the Alternative Methods Act would permit a judge to conduct an in-chamber, on-camera interview of the child with the attorneys submitting questions for the court to ask the child. Meanwhile, the parties would be allowed to watch the child’s examination. The judge could examine a child in open court with only the attorneys present. Counsel would have an opportunity to object if appropriate. Further, the attorneys would direct and cross-examine the child in open court with the parties waiting outside of court. The judge could also use a combination of these methods to best serve the goals of justice, minimizing the adversarial aspects of litigation and reducing the emotional impact on the child.
The Alternative Methods Act does not attempt to strictly define the method or methods by which face-to-face confrontation with the child witness may be avoided. NRS 50.500 through 50.620. The term is defined broadly. It encompasses alternative methods currently recognized across the country for taking the testimony of a child, such as audio visual recordings to be later presented in the courtroom, closed-circuit television which is transmitted directly to the courtroom, two way video conferencing or other arrangements that shield the child from direct confrontation with a particular party or the finder of fact. Nev. Sen., Minutes of the Senate Committee on Judiciary, 72 Session Nev. Leg. (February 11, 2003). The Alternative Methods Act also takes into consideration other similar methods either currently employed in the State or through technology yet to be developed or recognized in the future. NRS 50.560(2)(a).Whatever method is ultimately chosen, it must protect the parties’ due process rights and "permit a full and fair opportunity for examination or cross-examination of the child witness by each party." NRS 50.610. However, what constitutes a full and fair opportunity appears to be initially determined by the court. NRS 50.600(3) states, "The alternative method ordered by the presiding officer may be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order." Further, this provision does not impact upon other established state proceedings where the right to examine or cross-examine the child witness are already restricted or limited. NRS 50.560(2)(a).
Finally, the court’s order regarding testimony by alternative method has to specifically lay out the method to be used, the court’s reasons justifying the method and any special conditions necessary to facilitate examination of the child. NRS 50.600. By requiring an order to contain specific findings and state the procedures to be involved, the Alternative Methods Act ensures the court’s decision can be challenged and raised before the Nevada Supreme Court. Nev. Sen., Minutes of the Senate Committee on Judiciary, 72 Session Nev. Leg. (February 11, 2003 and April 15, 2003).
Conclusion
Because the welfare of the child witness is so important to the court and the parties, requesting that a child testify in a custody proceeding, even by alternative methods, cannot be taken lightly. A thorough consideration of what counsel hopes to achieve, whether the child is in a position to assist and most importantly what emotional trauma the child may suffer is critical to addressing the issue. Thoughtful use of the Alternative Methods Act is one way to give a child a voice while simultaneously shielding them from harm in perhaps the most significant legal proceeding of their life.Vincent Mayo, Esq. is an attorney at Pecos Law Group in Henderson. Mr. Mayo represents clients in domestic relations law including divorce, complex custody disputes, relocation litigation, paternity, adoption, termination of parental rights, cohabitation, name changes and separate maintenance. Mr. Mayo can be reached at (702) 361-2318, or vincentmayovinc@aol.com.
Subscribe to:
Comments (Atom)
