This question is very common for litigants involved in a custody or parenting time dispute. The New Jersey Court Rules specify that the Court may decide whether to conduct an interview of a child as part of a custody hearing. The request for the Court to conduct an interview may be made by a litigant. In addition, the Court may also decide to conduct an interview of a child, even if neither litigant requests an interview.
The Court rules further clarify that the decision whether to conduct an interview of a child or not rests within the sole discretion of the Family Court Judge, irrespective of the age of a child. This decision will only be disturbed if the Family Court Judge abused their discretion.
The Court Rules require that the decision to conduct an interview shall be made before Trial. If the Court decides not to interview the child, they shall place the reasons for their decision on the record. If the Court decides that they will interview the child, counsel for both parties shall be afforded the opportunity to submit questions for the Court’s use during that interview. If the Court decides not to ask a question that has been submitted by either party, it shall place on the record the reason for not asking the question. A transcript must be made of each interview, and shall be provided to counsel and the parties upon request.
In a recent Unpublished Appellate Court Decision of Jannarone v. Jannorone, the Appellate Court reversed the Trial Court’s decision where the Trial Court declined to interview a 16 year old child. In declining to interview the child, the Trial Court stated it “clearly prefers to involve the children as little as possible in these litigation issues” and “to interview her directly … will not have so significant impact on the Court as to justify the turmoil and tribulation said interviewing process may have on the child.”
The Appellate Division looked to the case of Macknowski v. Mackowski, where the Appellate Division previously held that the “value of a properly conducted interview” of a 16 year-old child “outweighs the possibility of harm” that could result from that interview. 317 N.J. Super. 8, 14 (App. Div. 1998). The Appellate Division also looked to a Supreme Court decision which provided that “the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion.” N.J. Div. of Youth & Family Servs. V. E.P., 196 N.J. 88, 113 (2008).
In the case at hand, the Appellate Division ultimately found that the child was a well-adjusted honors student, who has never been in trouble. The Appellate Division also found that there was no reason to believe that the child could not cogently express her views. The Appellate Court reversed this decision, and concluded that the Court should have interviewed the child and considered her wishes.
Although the Court Rules state that the decision to conduct an interview of a child in a custody proceeding rests within the discretion of the Trial Judge irrespective of the child’s age, it is clear that the age and maturity level of the child are critical factors the Court should consider in deciding whether to conduct in interview of the child.