Question:

Utah Code Ann. �30-3-10(1)(d) states that, in child custody proceedings, a judge may inquire of the children and take their desires into account when determining custody and parent-time. The judge may interview the children in camera. In relation to this statute, the Board of District Court Judges has asked the following questions:

1) When a guardian ad litem has been appointed by the court in a child custody proceeding, is it a violation of Canon 2, Rule 2.9¹ for the guardian ad litem to attend and participate in the in camera meeting?

2) When a custodial guardian (a non-parent who has been given the temporary custody of the children) has been appointed by the court in a private proceeding, is it a violation of Canon 2, Rule 2.9 for the custodial guardian to attend and participate in the in camera meeting?

3) Is it a violation of Canon 2, Rule 2.9 for a judge to meet or speak with an appointed guardian ad litem and/or an appointed custodial guardian without the children present?

Answer:

The Committee is unable to provide answers because the questions involve legal conclusions that are outside the scope of the Committee�s authority.

Discussion:

Canon 2, Rule 2.9(A)(5) of the Utah Code of Judicial Conduct states that �a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows: . . . . A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law.� The Code prohibits ex parte communications unless the communication falls within one of the exceptions listed in the Code. The relevant exception in this opinion is for ex parte communications expressly authorized by law.

Utah Code Ann. �30-3-10(1)(d) states that, in child custody proceedings, �the court may inquire of the children and take into consideration the children�s desires regarding future custody or parent-time schedules . . . .� Subsection (1)(e) states that if �interviews with the children are conducted by the court pursuant to Subsection (1)(d), they shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with the children is the only method to ascertain the child�s desires regarding custody.� This statute authorizes a judge to engage in an ex parte communication with a child for the limited purpose of determining a child�s wishes for custody. The questions posed by the Board of District Court Judges involve whether the statute also authorizes the judge to engage in an ex parte communication with the child�s guardian ad litem or custodial guardian. If the statute does not expressly authorize ex parte communication, then a judge�s communication with a child�s representative is impermissible unless the other parties are present.

The questions presented by the Board of District Court Judges present a dilemma for the Committee. The Committee is charged with interpreting the Code of Judicial Conduct. In order to resolve this question, the Committee would be required to interpret a statute and determine whether the statute authorizes a judge to engage in ex parte communications.

The Committee faced a similar dilemma in Informal Opinion 97-4. The question in that opinion was whether a juvenile court judge �may ethically receive ex parte requests from juvenile court probation officers seeking warrants to detain juveniles who have violated court probation orders.� The Committee recognized that one of the exceptions to the ex parte communication prohibition involves communications authorized by law. The Committee noted, however, that none of the statutory or rule provisions relied on specifically authorized ex parte affidavits or oral requests for such warrants. While it is possible that exhaustive review of case law and analogous statutes might lead to the conclusion that the practice is authorized by law and constitution, the Committee doubts its institutional prerogative to undertake such an inquiry and render what would amount to be a legal, rather than an ethical, opinion.

The Committee stated that the dilemma �results from the admittedly circular language of the provision: the practice is ethical if it is legal and unethical if illegal. The Committee�s responsibility, however, is to give opinions on the ethical propriety of professional or personal conduct, not the legal propriety.�

The Committee was able to resolve the question in Informal Opinion 97-4 based on other provisions within the Code. The Committee did not engage in a legal analysis as to whether a specific law authorized the ex parte contact. In this case, the Committee is of the opinion that it is unable to resolve these particular questions because they require a legal interpretation of �30-3-10.

The Committee is not in a position to state whether �30-3-10 allows ex parte contact with a guardian ad litem or other representative of the children. An argument can be made that authorization to speak ex parte with a child naturally includes authorization to speak with the child�s attorney or other representative. The argument would be that this is analogous to something such as a request for an ex parte domestic violence protective order, which may be communicated to a judge by a party, a party�s attorney, or the party and the attorney jointly, even though the statutes do not expressly identify those individuals. Conversely, it can be argued that the statute is expressly limited to children because it mentions personal �interviews� and not other forms of communication that are often done through representatives. The resolution of the arguments involves a legal conclusion. The Committee does not have authority to interpret and declare the meaning of the statute.

The Committee recognizes the difficultly that this creates for judges in trying to anticipate their conduct. Considering the language of Rule 2.9, if judges are concerned about whether their conduct falls within the exception, the remedy is to establish clarity through statute or rule. The Committee therefore suggests to the Board that this question be answered prospectively by amending the statute to eliminate any confusion, or by the Board itself offering an opinion to judges on the meaning of the statute.