The issue of interviewing children in custody cases tends to be somewhat controversial. When I first started practicing, it was essentially mandatory if there was a custody trial. More than 20 years ago, it because something that was at the discretion of the trial judge. In fact, the Court Rules (R. 5:8-6) states:
“… As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court. Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody. …
In fact, in 1998, before the change to the Court Rule, Judge Carchman who was a well respected Appellate Division Judge, stated the following in the Mackowski case:
“We recognize that some judges prefer not to be involved in a process which can be uncomfortable for both the judge and the child. That, however, provides no justification for abrogating the responsibility to perform a function mandated by our rules of court and necessary to fulfill a statutory duty. The concern that judges are ill-equipped to conduct such interviews speaks to the need for, enhanced judicial training. A carefully conceived and conducted interview can produce facts, including, among other things, information about interests, activities with parents, living arrangements and friends, that may be dispositive and at no time require that the child be confronted with the ultimate question requiring that an election between parents be made. We agree that no child should be asked to select between two opposing parents, and R. 5:8-6 does not speak in such stark terms. …
Our concurring colleague urges that the interview be conducted not by the court but by a mental health professional who will then report to the court. Ceding fact-finding responsibility to another party dilutes our ability, as judges, to decide issues based on the “best evidence” available. Our rules presently provide an opportunity for a custody investigation which may well include an analysis by a mental health professional. See R. 5:8-1; R. 5:3-3. But there is a more important practical concern. Too often, judges deciding issues in the Family Part must rely solely on the “voices” of the attorneys who prepare the competing affidavits and certifications on the pretense that the litigant is speaking. R. 5:8-6 insures that where custody is a “genuine and substantial” issue, the judge will not be insulated from seeing and hearing the subject of the dispute. The “voice” seen and heard will not be that of the lawyer or litigant but that of the child who is the subject of the dispute. The value of a properly conducted interview enabling the judge to see and hear the child first-hand outweighs the possibility of harm that may befall a child by being subjected to the interview process. On balance, it is not the interview that is ultimately harmful, but the custody dispute between the parties that potentially wrecks havoc with the child.
So why do courts even want to hear from a child. Because one of the factors of the custody statute that the judge is required to consider is, “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” The sufficient age part is key here. Seldom does a child under 10 really have the ability to “reason as to form an intelligent decision” and very often, preference of children less than 12-13 is not given much credence.
But what happens when a court relies on a interview of a much younger child, and worse yet, gives whatever is said great credence in coming to a decision? That is exactly what happened in the case of O.M.-R v. T.D.P., an unreported (non-precedential) Appellate Division decision released on December 16, 2024. This case dealt with child relocation from New Jersey to Georgia that dealt with the custody of a 4 year old.
Without getting into the weeds of the details of the case, suffice it to say that the trial court relied on the preference of a 4 year old. The reader can read the case to find that the so-called preference, such as it was, was hardly clear and as the Appellate Division noted, ambiguous if not contradictory.
Not surprisingly, the Appellate Division held that the transcript suggested that the child was not a candidate for an interview. In doing so, they cited the Lavene case for the following proposition:
“The age of the child certainly affects the quantum of weight that [their] preference should be accorded, but unless the trial judge expressly finds as a result of its interview either that the child lacks capacity to form an intelligent preference or that the child does not wish to express a preference, the child should be afforded the opportunity to make [their] views known. We would think that any child of school age, absent the express findings we have indicated, should have that opportunity and that the judge would be assisted thereby.
In this case, the child was not even of school age, and as the Appellate Division noted, “… her ability to answer questions, which were sometimes posed to her in compound form, did not yield a clear record.”
My bet is that even if the questions were more artfully posed to her, questioning a 4 year old regarding preference is far from ideal, if not pointless.
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