Parent's remote testimony using Skype upheld in child custody case

April 16, 2014

In the case of In re Marriage of Swaka, the Court of Appeals of Washington upheld an order permitting the mother to testify remotely from a location in Spain in child custody proceedings held in the Kitsap Superior Court using Skype, a live video chat and long-distance voice calling service for communicating over the Internet.

Witness testimony is generally required to be submitted orally in open court, but under a provision of the Superior Court Civil Rules the court may permit testimony using "contemporaneous transmission from a different location" upon proof of "good cause in compelling circumstances."

Procedural history

The parties were married in 2002, but separated in 2006. The mother filed a petition for dissolution of marriage in 2007, which was granted by default later that same year, after the father failed to appear or respond. The dissolution decree included an order for child support and a parenting plan designating the mother as the primary residential parent.

In 2009, the mother temporarily relocated to Spain with the children for a study abroad program without any objections by the father. In 2010, the mother and the children began cohabitating with another man and his two children in Spain.

In 2011, the mother filed a motion seeking court approval to permit her to permanently relocate to Spain. At the relocation trial which took place in 2012, the mother was granted permission to testify remotely via Skype. The father appealed the ruling.

The ruling by theCourt of Appeals

The Court of Appeals held that the mother had established good cause in compelling circumstances for providing her testimony remotely, citing four factors.

First, the mother supported her motion with a declaration indicating that requiring a personally appearance in court to testify would have forced her to choose between uprooting the children and having them travel with her or leaving them in a Spain, where she resided, in the care of a nonrelative. The Court of Appeals determined that these circumstances established proof of an actual hardship, not merely an inconvenience, to the mother and the children, since international travel would have disrupted the children's education and their lives.

Second, even if these circumstances could be characterized as an inconvenience and not a hardship, the Court of Appeals stated that trial courts have the discretion to consider "significant" inconvenience as a factor, in combination with other factors, in determining good cause.

Third, the Court of Appeals held that it was proper for the trial court to consider the mother's concerns about her parents' attempts to interfere with her custody rights if she traveled to Washington either alone or with the children. The record indicated that the mother's parents had previously attempted to force her to return to the United States with the children. They made threats to have her arrested, had her visa revoked, and attempted to have her and the children deported from Spain.

Fourth, the Court of Appeals also noted that, since the case was submitted as a "bench trial"--a procedure in which the judge hears and decides the case without a jury--the judge might be better able than a jury to evaluate the testimony and assess the credibility of a witness testifying remotely. The appeals court stated that in certain cases video testimony might affect the jury's ability to observe a witness's demeanor.

Individuals facing issues relating divorce, child custody or other domestic relations matters are urged to consult with a competent attorney, experienced in family law matters for the protection of their legal rights.

Article provided by DuBois Cary Law Group, PLLC
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