It depends. Pursuant to New Jersey’s Rules of Court, as long as the case is ongoing, the parent’s respective lawyers are permitted to view the transcript of a child interview conducted by a Judge of the Superior Court of New Jersey. However, once the case has been concluded, a judge shall not release the confidential interview (known by attorneys as an In Camera interview), nor shall the court shall allow a transcript to been reviewed by anyone, including the mother and father. The following case provides an excellent explanation of this rule and the lawyers at our law firm are guided accordingly.
In Uherek v. Sathe, father Craig Uherek appealed a decision of the Superior Court of New Jersey, Family Part of Middlesex County to deny his request, made almost four years after the divorce, for a transcript of the court’s in camera interview with his child. Craig argued that according to Rule 5:8-6, transcripts of a Family Part court’s in camera interview with a child must be provided to parents or their attorneys upon request. The New Jersey Appellate Division ruled that Craig did not fully understand the entire scope of Rule 5:8-6, and explained that a parent’s right to a transcript of their child’s in camera interview was dependent on the existence of an ongoing custody dispute. Rule 5:8-6 does not require a Family Part court to turn over such sensitive material to a parent just because they request it. While a case is pending, a judge may rely on information gathered from an in camera interview, in that case a litigant would have a right to know that information on due process grounds. However, this right to know must be tempered with sensitivity to the child’s privacy.
Craig and Shobhana Uherek got divorced on May 28, 2002. On April 28, 2006, almost four years after their divorce, Craig requested the Family Part for a copy of the transcript of the judge’s interview with his child. A child’s preference is an important factor in some custody disputes, and sometimes judges conduct in camera interviews with the child to ascertain certain facts. New Jersey Statute § 9:2-4 sets forth certain factors which a judge must consider in any custody or change of custody determination. These factors include the child’s preference, as long as that child is of sufficient age, and has a reasonable capacity to make an informed decision.
According to the Rule 5:8-6, the trial judge has sound discretion to decide whether to interview a child in a contested custody matter, but must at all times be guided with the best interest of the child in mind. Rule 5:8-6 further provides that the judge should interview the child before the trial starts, unless there is good cause to do otherwise. Furthermore, if the Family Part judge decides not to interview the child, he or she must state the reasons for not doing so on the record. Conversely, if the court does chose to conduct an interview, it must give counsel the chance to submit questions for the court to ask during the interview. If the court chooses not to ask any of the submitted questions, the judge must state the reasons for not doing so on the record.
If a Family Part judge chooses to conduct an interview of the child, Rule 5:8-6 states that the court: (1) have a camera record the interview; (2) give counsel the opportunity to submit questions, and state on the record reasons for not asking any submitted questions; (3) create an audio recording of the interview; and (4) shall provide transcripts of the interview to both attorneys upon request.
Craig mistakenly claimed an unrestricted right to the transcripts. He did not completely understand Rule 5:8-6, which states that a transcript of a judge’s in camera interview with a child “shall be provided to counsel and the parties upon request and payment for the cost.” The New Jersey Appellate Division explained that while this phrase may seem clear on its face, its meaning must be understood within the context of the rule’s entire text and historical understanding. Rule 5:8-6 is quite a long rule, and because of its many connecting parts, one must consider the whole rule to understand and single phrase.
The New Jersey Appellate Division noted that the title of Rule 5:8-6 is “Trial of Custody Issue.” In keeping with this title, the body of the rule constantly recognizes that the obligations and rights contained in it are wholly dependent on the existence of an actual custody dispute pending before the court. Rule 5:8-6 states that a court may conduct an in camera interview with a child, on its own volition or upon the request of a litigant, “as part of the custody hearing.” A complete understanding of the entire text of the rule shows that a parent’s right to a transcript of the in camera interview with the child is totally dependent on an actual custody dispute pending before the court. Moreover, Rule 5:8-6 does not authorize the distribution of such private and sensitive material just because a parent requests it.
A judge’s obligation to conduct an interview with a child, as long as that child is the appropriate age, has historically been triggered by the existence of an active custody dispute. Due process principles require the disclosure of information gathered from the in camera interview, when the judge relies on that same information in rendering a verdict. However, a litigant’s right to know this information in not unrestricted. This right must be tempered with sensitivity for the child’s privacy and freedom of expression.
Traditionally, New Jersey Family Part courts have acknowledged a parent’s right to know of the statements the child made to the judge during an in camera interview while a custody dispute is pending where the same information is of relevance, both as a way to acquire relevant evidence, and to maintain the parent’s due process right to fair notice. These principles have been enumerated in Rule 5:8-6. The New Jersey Appellate Division reasoned that the historical principles and the clear intent of Rule 5:8-6 both show that parent’s wish to learn what their child said to a judge during an interview invades upon a child’s privacy, and this invasion should only be allowed during a pending child custody dispute.
The child’s interview with the judge is done in camera because the child has a right so some degree of privacy to preserve his or her freedom of expression. To make private conversations of this nature more readily available than necessary by notions of due process and Rule 5:8-6, would impair the court’s ability to get an accurate account of the child’s preferences. Logically, a child will be more willing to openly express their preferences outside their parent’s presence. In an effort to both get the best available evidence, and preserve a child’s right to privacy, a child should be afforded the opportunity to speak openly. This is a lot less likely to occur if the child’s comments are readily available. While Rule 5:8-6 allows for the release of the transcripts of these interviews during a pending custody case, there are no other circumstances where such a release is allowed, even to the parent, the New Jersey Appellate Division found no reason to create one.
In Uherek v. Sathe, the father requested the transcripts from a custody dispute that occurred almost four years ago. Furthermore, the custody and parenting times issues from that dispute had been resolved. Therefore, the New Jersey Appellate Division found that there was no need to allow Craig to intrude into the child’s interview with the judge by providing him with a transcript of the conversation, and affirmed the Family Part’s decision to deny his informal request. For more information on this issue, please contact my office today.
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