The Texas Family Code requires a trial court to interview a child who is 12 years of age or older upon request of any party to determine the child’s wishes concerning conservatorship. Tex. Fam. Code § 153.009(a). And on the motion of any party, “the court shall cause a record of the interview to be made” and “[a] record of the interview shall be part of the record in the case.” Tex. Fam. Code § 153.009(f).
One issue that sometimes arises in connection with these interviews is how a trial court should handle sensitive information that may be conveyed by the child. A trial judge may have concerns about a parent confronting the child about the interview. So, can the judge seal the interview record and refuse the parent’s access to it?
The Texas appellate courts have made clear that the answer is no.
Because the statute is mandatory, a trial court abuses its discretion by sealing the record of an interview under section 153.009. As the Waco Court of Appeals explained in one case:
[T]he trial court abused its discretion when it sealed the record of the interview with the children and refused to make this record a part of the record in the case. There is no authority for this procedure. On the contrary … the Family Code provides that the record of the interview with the children shall be made a part of the record in the case.
Glud v. Glud, 641 S.W.2d 688, 690 (Tex. App.—Waco 1982, no writ) (citation and internal comma omitted).
What, then, is the proper course for a trial court with concerns about confidential information relayed during an interview? The proper action is “not to exclude the matter from the statement of facts, but to make an appropriate order for the guidance of the attorneys and other officers of the court.” Bennett v. Northcutt, 544 S.W.2d 703, 706 (Tex. App.—Dallas 1976, no writ). A trial court can impose conditions on the use of information contained in the interview transcript and to whom it may be disclosed by the parties and their lawyers. But it cannot simply seal the record and refuse the parents access to it.