## Facts

- The parents divorced in 2000; the mother received primary physical custody of their daughter.
- After the divorce, the mother developed serious psychological problems and admitted she could not adequately care for the child.
- In 2001, the parents jointly sought and obtained a court order transferring temporary custody to the father.
- The mother later received treatment (including medication and counseling) and, in 2002, petitioned to regain custody.
- Before that petition was heard, the father was called to active military duty; the court placed the child with the mother during deployment, ordered the child returned to the father upon his return, and imposed health-related conditions on the mother.
- After the father returned in 2003, the court held a custody hearing; the father requested an in camera interview of the child.
- Over the mother’s objection, the judge interviewed the child in chambers off the record, without the parties or counsel present.
- The court found the child (then 11) mature enough to express a preference and stated the child clearly preferred living with the father and his blended family.
- Relying in part on the interview and other circumstances, the court modified custody and awarded primary custody to the father; the mother appealed.

## Issues

1. Whether the father proved a material change in circumstances sufficient to reopen custody.
2. Whether the district court abused its discretion in modifying custody based on the child’s best interests.
3. Whether the court erred by conducting an unrecorded, private in camera interview and relying on it without creating a record adequate for appellate review.

## Decision

- The Supreme Court of Wyoming affirmed the finding of a material change in circumstances and the general best-interests determination supporting placement with the father.
- The court reversed in part and remanded because the district court conducted an off-the-record in camera interview and expressly relied on the child’s preference derived from that interview.
- The absence of any recording or on-the-record account prevented meaningful appellate review of what the child said, how the interview was conducted, and how the preference was weighed.
- The case was remanded for further proceedings consistent with the requirement that reliance on a child interview be supported by a reviewable record.

## Legal Principles

- A custody modification requires (1) a material change in circumstances and (2) a determination that modification serves the child’s best interests.
- A child’s custodial preference is a relevant best-interests factor when the child is of sufficient age and maturity; if a court relies on that preference, it must be properly considered and supported in the record.
- In camera interviews of children are not categorically barred, but if the interview is used as evidence supporting the custody decision, the procedure must preserve due process and permit appellate review.
- When a trial court relies on an in camera interview, it must create an adequate record of the interview (e.g., a recording, transcript, or sufficiently detailed on-the-record summary).

## Conclusion

The court upheld the substantive basis for reopening custody and placing the child with the father, but required reversal and remand because the custody award rested in part on an unrecorded in camera child interview that was not reviewable on appeal.


KES v. CAT, 107 P.3d 779 (Wyo. 2005)