2022 Case – Primary Residential Parent and Judge Relying on Recollection as Evidence
The Camacho case (Camacho v. Camocho, Tenn. App. Ct. 2022) has several issues addressed, and I will address one of those issues:
When a judge relies on his/her own recollection of a witness from a prior court hearing that judge becomes a “witness”, crossing the line of impartiality.
Background:
This couple was married in 2013 and had 2 children, a 15-year-old son and a 12-year-old daughter when the Father filed for divorce in April 2020. Prior to the temporary hearing, the parents had agreed to 50/50 timesharing for the summer.
At the temporary hearing in July 2020: the trial court found that the Father’s testimony “not credible, was evasive” and currently in recovery for an alcohol problem. The trial court found that the Mother’s current boyfriend, Adam Stamey, was “a horrible witness”. The trial court awarded the Mother primary residential parent status and the Father got visitation every other weekend. The trial judge cautioned the Mother that she should “not expose children to Mr. Stamey”.
The final hearing was next year in July 2021: The witnesses were primarily, the Mother, the Father, and their son, but not Mr. Stamey. The Mother focused her part of the case on Father’s alcohol abuse an even after Father got sober, he was not involved with children’s school, sports, and medical. Father focused on Mother’s relationship with Stamey.
The trial judge published the Final Decree in August 2021, and made numerous references to the Mr. Stamey, though Mr. Stamey did not testify, and no transcript was entered from the prior hearing. The trial judge found Father as primary residential parent and Mother awarded every other weekend visitation.
Law and Consequences:
Law: While a judge can take judicial notice of its own orders and judgements in cases before it, reliance upon its own recall of the evidence in those cases is not the same.
Consequences It was error for the trial judge to rely on prior testimony of a witness when the witness did not testify, nor a transcript introduced. The trial judge used his own recollection of Mr. Stamey’s testimony as part of findings for final, which made the judge a witness. The trial judge “crossed the line” or “crossed over the invisible barrier of impartiality to become a witness or advocate for one party”.
Caveat for attorneys:
1. Make sure that you object to such reliance or attempt to introduce proof previously submitted, or you could be waiving the same.
2. Had the trial judge made detailed findings at the temporary hearing then the trial judge may have been able to rely on the same.
Stay tuned for more golden nuggets of information: paramour provisions and sex outside of marriage....
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