TOOL OF THE DAY:  Confrontation Clause…How Does this Apply to a Judge Interviewing Your Child?>

CATEGORY: Family Law Due Process

When a judge speaks to your child in chambers they cut you off from being able to defend yourself and they violate the confrontation clause, which means they have violated your due process. Keep reading to find out how the 6th amendment may apply to your family court case.

Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. ~Crawford v. Washington (SCOTUS 2004)

When a judge reads a letter from a child or an affidavit and then keeps it secret, you cannot defend yourself either. So what does the U.S. Supreme Court have to say about this? And how should the state be applying these rulings?

When a judge elicits information from your child, they may try to use it to deprive you of your rights and time with your child. So how would you protect yourself from being disadvantaged unfairly by a judge speaking to your child in private or using something your child wrote in private? You would use the case referred to above, which we will get into more later in this post.

First, start by asking yourself the following to see if your situation might qualify for the protections of Crawford v. Washington(2004) SCOTUS:

  1. Is the judge eliciting testimony?
    1. If the judge is questioning your child he is.
  2. Is the testimony hearsay?
    1. If the judge is going to use it and not give you opportunity to cross-examine it is.
  3. Is the hearsay testimonial in nature?
    1. If the judge is going to take the testimony into consideration it is.

If the judge is going to question your child in private or use something that they wrote to justify interfering with your rights and time, you need to think about “How would the judge get the testimony on the record?” (We understand that most of the time the judge will keep what the child tells them secret and never put it openly on the record. What they put on the record is that they conferred with the child and took their preferences into consideration. Therefore this is being used as evidence. And the evidence came from testimony.)

The judge cannot testify in a case that they preside over, so if they use the testimony of the child it would be as if the judge testified. And if the judge testified about something the child said, wouldn’t this be hearsay. And if the hearsay is used as part of the judge’s determination, then isn’t it testimonial in nature?

Of course, you never hear anyone in the family court referring to the judge conferring with your child as eliciting testimony. But that is what the judge is doing. The court just tries to sweep it under the rug as some protective measure that they take to avoid the pressures and distress that it may cause the child if the child were required to be put on the witness stand. Nope. Do not buy into this.

Unless your case is one where it could be proven that it would cause too much damage to the child to face the person that has harmed them even, the accused usually has the right to face the accuser.

I do remember reading somewhere that if a child has been abused so badly in such a heinous way that they can be protected from facing the person that they accuse. It would be the exception to be able to overcome the confrontation clause and not the norm.

In family court, if there aren’t any proper charges being made then regardless of what a parent is being accused of including which is usually just things like the parent is not as attentive or not as good at caring for the children as the other parent or that one parent is stricter than the other or has a boyfriend or a girlfriend, these are not sufficient to overcome the clause. Basically, I would be extremely surprised to see the family court legitimately overcome the confrontation clause.

It would be very difficult for the court to justify not allowing you to face your accuser per se. The word “accuser” is generally used in criminal cases. We are using it here because it is having the same effect of creating punitive orders that deprive and interfere with a person’s ability to exercise all of their rights with their child in family court. Calling it something else in family court does not make it anything different. If they deprive you of equal access and equal time with your child then this is a punishment and punitive and should only be considered under quasi-criminal and criminal circumstances.

The concept of the confrontation clause is protected in more than just the 6th amendment of the U.S. Constitution. It also goes back to this historical concept:

“The right to confront one’s accusers is a concept that dates back to Roman times.”

“The most notorious instances of civil-law examination occurred in the great political trials of the 16th and 17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh’s alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleigh’s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.” 1 D. Jardine, Criminal Trials 435 (1832). Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that “[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face . . . .” 2 How. St. Tr., at 15-16. The judges refused, id., at 24, and, despite Raleigh’s protestations that he was being tried “by the Spanish Inquisition,” id., at 15, the jury convicted, and Raleigh was sentenced to death.

One of Raleigh’s trial judges later lamented that “`the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.'” 1 Jardine, supra, at 520. Through a series of statutory and judicial reforms, English law developed a right of confrontation that limited these abuses.”

The court is violating your right to confront your child when they are using them to determine your rights and time with your child. According to your fundamental parental rights, you do not have to get permission from a court of law to be able to exercise your rights fully and independently, and without government interference. There is nothing that says that children can be used to determine your right to exercise these rights. The court has to overcome the confrontation clause before they use your child privately.

The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the “right . . . to be confronted with the witnesses against him,”

If you are facing this possibility, here is a suggestion of something you could try. We know a father who tried this and he was able to get the judge to create a transcript of the testimony and allow him to have a copy of the transcript before continuing the trial. The father was then able to address what the child said on the record and preserve error. (However, this was not ideal, and if the father’s child had been younger then the father might have used any disadvantage still created by the private exchange between the judge and the child as a reason for the appellate court to overturn the ruling.)

Let’s get back to our steps. If you qualify from the first step. It’s time to go on to the second.

Second, you should think about whether or not the judge is allowed to testify in cases that he presides over.

1. In most states judges are not allowed to testify in cases they preside over.

a. This comes from a federal policy where judges are not allowed to testify in any federal case they preside over.

Check your state for their specific rules on this.

2. In most states judges are not allowed to elicit testimony from witnesses.

a. If the judge is questioning your child this is eliciting testimony.

3. In most states a judge is not allowed to enter testimony onto the record. This would be just like testifying.

4. When a child is not directly testifying where you can cross-examine them this could also be considered hearsay.

Here are the steps the father used to protect himself from the judge’s decision to interview his child in chambers:

  1. OBJECTION: I object to you conferring with my child or interviewing them in chambers based on this is a violation of the confrontation clause, and would be hearsay. Then state that your authority is Crawford v. Washington (SCOTUS 2004). Also know the hearsay rules.
  2. SUPPORT THE OBJECTION: Next, you would explain to the judge that you have a right to cross examine and that it is a violation of the hearsay rule for the judge to consider testimony from anyone in private and use it as probative and in consideration of the decision that the court will make.
    1. Under Crawford, the first issue is whether the hearsay statement is “testimonial” in nature. If so, the constitutional right of confrontation and cross-examination is absolute, and no showing of reliability, whether based on a “firmly rooted” exception or particularized indicia, can substitute.

So when the judge tries to argue with you that this is family court and civil and this case does not apply, be prepared with our other lessons where we taught you how to argue that cases like Casey, Roe v. Wade, insurance cases that banned children being made second-class citizens, and others do have things contained within them that do apply. Sometimes cases from other areas are used in family law because there are rights addressed that apply to what is being affected in family law. For some other examples, we get some of our privacy rights from some bankruptcy cases as well. And the list goes on.

So if the judge uses the argument that you cannot use this case because the case you are trying to use is not a divorce case or that this is not criminal law, these are straw man arguments that you will have to know how to overcome.

One of the reasons that could prevent you from being able to use the case would be if you don’t have the elements required that show that what you are applying it to has a similar enough element to apply. (See some of our prior blog posts that we made where we discussed some of the steps for evaluating how and when to use a case.)

Of course, the judge will think that because he is a judge he can be impartial and will ensure that he doesn’t use anything that would disadvantage either parent, you can use this piece of Crawford to help you explain why that is not sufficient:

To add insult to injury, some of the courts that admit untested testimonial statements find reliability in the very factors that makeNowlin, supra, at 335-338, 579 S. E. 2d, at 371-372. Other courts routinely rely on the fact that a prior statement is given under oath in judicial proceedings. E. g., Gallego, supra, at 168 (plea allocution); Papajohn, supra, at 1120 (grand jury testimony). That inculpating statements are given in a testimonial setting is not an antidote to the confrontation problem, but rather the trigger that makes the Clause’s demands most urgent. It is not enough to point out that most of the usual safeguards of the adversary process attend the statement, when the single safeguard missing is the one the Confrontation Clause demands.

And continue with this to show how our framers and our Supreme Court justices knew better:

We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands.

Essentially your goal here is blocking any evidence that would disadvantage you unfairly.

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” This case addresses the fact that regardless of whether this is considered testimonial in nature or not, if the constitution is offended then the practice cannot continue. (See thenext postfor more on this and how this relates to GALs and other experts.)

Ultimately, your child and your rights to raise your child as you see fit regardless of how the child likes the way you raise them, is protected. And the way that testimony and evidence is collected is also protected. This is part of our democracy. And in order to exercise your rights in our democracy, “You don’t have to ask permission to take responsibility.”[i]

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

Now the next time you see one of these motions, a “Motion for Judge to Confer with Child,” you now have a place to start to build your case for objecting and preserving error for challenging your judge if they insist on using your child.

  1. 000-00000-15

IN THE INTERESTOF                                       §          IN THE DISTRICT COURT

JANE DOE, MINORCHILD                             §          000 JUDICIAL DISTRICT



  1. In accordance with provisions of §153.009, Texas Family Code, Respondent requests that the Court interview the child in chambers at the trial of this matter. The child is twelve years old.


(Parent’s name making the motion) prays that the Court grant the Motion.

Respectfully submitted, [etc.]


Keep coming back to this blog as we help you explore your options and make your decisions on what is right for you and your family.

Take Care and see you back here tomorrow!


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*We are not telling you to disturb the peace. This paragraph is a quote from the movie “Selma” 2014.

Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author

Divorce Solutions and Child Custody Solutions

Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)

Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)


Twitter: (@fixfamilycourts)




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[i] Creativity, Inc. Catmull, Ed. 2014.