So often I hear this statement from a client in a case in which custody is an issue. The next question is usually, “can my child tell the judge what he (or she) wants? The answer to that question is a definite maybe.
The New Jersey Court Rule 5:8-6 provides that when a court finds that custody of a child is a bona fide issue, the Court may, at the request of a party, or on its own, conduct an interview of the child. This interview is to be conducted in camera, which means the child will be alone with the judge for the interview. Although the interview is conducted by the judge alone with the child without the parents or the attorneys present, it is done on the record, meaning the entire interview is recorded, and the parties are entitled to a copy of the transcript of the interview. Additionally, counsel for the parties must be permitted to submit questions to be asked of the children ahead of the interview. If the Court decides not to ask that questions that have been submitted, the judge must tell the party submitting the question the reason for the decision not to ask the question.
The current rule is a change from the prior rule which had mandated an interview when custody was an issue. However, in 2002, the rule was changed to make the interview discretionary. In the event that a judge decides not to conduct an interview, the judge must place its reasons for not doing so in the record.
Judges often have good reason for not wanting to conduct an interview. Sometimes it may have to do with the particular facts of a case, when, for example, a judge feels that he or she has enough information and an interview may be unduly stressful to the child. Other times, the court may feel that a child is too young to be able to provide accurate information, or that the child is being influenced by one or the other parent and the wishes expressed may not be valid.
On the other hand, some judges simply do not feel comfortable with the interview process. In one case, Mackowski v. Mackowski, 317 N.J. Super. ( App.Div. 1998), one of the Appellate Division judges stated that he believed that judicial interviews of children were in fact harmful to the child and actually had a risk of being destructive to parent-child relationships. He thoughtfully expressed his belief that no matter how sensitive a judge tries to be, there is nothing that judge can do to convince the child that he or she is not responsible for the ultimate outcome of the case. In his comments, Judge Kestin noted his belief that it is far better to leave the job of an interview to a mental health professional who has years of professional training and experience.
Certainly, there will be cases in which it is appropriate to have a court conduct an interview of a child in connection with a custody dispute. However, Judge Kestin’s insightful comments are ones which all attorneys and litigants should keeping mind when experiencing that automatic impulse to ask a judge to conduct an interview with a child.