One of the most difficult – and most divisive – aspects of a divorce case is where there is a bona fide dispute between the parties as to what the custody and parenting time arrangements should be for their minor children. Frequently, a client will insist that the children be allowed to speak to the judge directly so that the judge can hear first-hand with whom the child would rather live and/or so the judge can be told what a terrible parent the other party is. While it is a childs best interest which is the cornerstone of any custody determination, consideration of the impact on a child by placing him or her directly in the middle of these custody disputes is often lost when such requests are made. Such concerns have resulted in judges declining to speak to or “interview” the children in custody disputes with greater frequency in recent years despite the fact that the “preference of the child” remains one of the statutory factors a court is to consider in making an award of custody.
The determination of custody and parenting time issues of minor children incident to a divorce action in New Jersey is governed by N.J.S.A. 9:2-4. The best interests of the child is the governing standard and that statute sets forth a multitude of factors which a court “shall consider” in making an award of custody, including “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” How was the judge to evaluate this factor beyond a party’s often self-serving and usually inadmissable hearsay declarations of what they claim a child’s stated preference may be? Recognizing that most children lack the legal capacity to “testify”, and being loath to subject children to such a process in open court, procedures evolved whereby a judge could informally “interview” a child – usually in chambers and without the presence of either party or their counsel – so that the child could be afforded the opportunity to make his or her views known to the court. Our Rules of Court set forth procedures governing this “interview” process, making such interviews mandatory upon the request of a litigant when custody was a genuine and substantial issue and where the children were of “sufficient age,” at one point being defined as age 7 or older. During this time, many judges would often confide that while they enjoyed meeting the children regarding whom they were being asked to decide custody, they were uncomfortable with the proces of interviewing children, and were concerned about how well equipped judges were to conduct such interviews and of their impact upon the children. These concerns were shared with Judge Kestin in his concurring opinion in the Appellate Division case of Mackowski v. Mackowski, 317 N.J. Super 8 (App. Div.1998).
Judge Kestin opined that child interviews in custody cases were unwise and harmful to a child, impacting in subtle and potentially destructive ways on parent-child relationships and placing upon the child the burden that he or she was somehow responsible for the ultimate decision that was made. Rather, Judge Kestin believed that such information would better be obtained through evaluations conducted by qualified mental health professionals who were not only better trained and equipped to conduct a meaningful interview, but which insulated the child from a sense of direct involvement in the decision-making function. Following this reasoning, the Court Rule 5:8-6 was amended in 2002 to provide that a Judge’s interview with a child is discretionary rather than mandatory irrespective of the age of the child and, in these instances, setting forth procedures for conducting of such interviews, including counsel’s opportunity to submit proposed questions, that a stenographic or recorded record be made of same, and limits upon its use or disclosure.
The impact of this Rule amendment has been profound. Exercising their discretion, most judges now deny requests to interview children in the absence of extraordinary circumstances. If custody is truly a genuine and substantial issue, evaluations by mental health professionals are usually undertaken. The children are generally participants in that process and the courts will defer to these evaluations to the extent the children have expressed any “preference” therein. If the court has significant concerns over a child’s well being and/or whether either parent represents the child’s best interest, rather than interview a child about what may be going on, the court is more likely to appoint a Guardian Ad Litem (Rule 5:8B) on behalf of the child to investigate the situation and report to the court, if not also appoint counsel for the child. (Rule 5:8A). This is not to suggest that requests to the court to interview a child should never be made; rather, every case is different and there may be circumstances where arguments can be advanced that the court would benefit from speaking with the child – such as the age or maturity of the child, information that is uniquely within the child’s knowledge, the lack of a mental health evaluation due to lack of resources – or why the court should not cede its fact-finding responsibility to others in that case. A court remains under a duty to state its reasons if it elects not to conduct an interview.
Finally, even the decision to make such an interview request on behalf of a party must also be weighed against the reality that kids often say the darndest things, and despite what a party believes the child will tell the judge, the reality of what they say when they are alone with the judge may be totally different.