As a child custody lawyer for over twenty years, I am extremely familiar with the practices a judge may engage in during a contested custody case. If a New Jersey Family Court finds that there are several unresolved issues regarding which party will be granted custody of the child, the court will set a hearing date for both parties to plead their cases. In addition to the hearing, pursuant to Rule 5:8-6 a judge may use his or her discretion to conduct an in camera interview with the child. If the court chooses to do so, it must provide the parties’ attorneys the opportunity to submit questions for the court to ask during the interview. Once the interview is finished, the parties can request to have copies of the transcript; however, they are forbidden from talking about the interview with the child without first obtaining permission from the court. The recent case of E.D. v. D.C. further illustrates this rule.
In the case, the couple never married and lived separately. They had one child together, who lived with her mother. However, the father obtained an order granting him parenting time on Saturdays and Sundays, 10:00 am to 6:00 pm. During those visits, the child’s grandmother would be there as well. The child’s relationship with her grandmother was strong and in 2008 the mother even allowed the child to spend the summer at her grandmother’s home. However, the mother and father remained “highly contentious.” As a result, the father sought full custody of his child in June 2009. Yet, in December 2010 the father died.
Upon the father’s death, the mother agreed to allow the grandmother visitation with the child. Nevertheless, the mother ended the agreement after the grandmother allegedly blocked her from talking to her daughter on the phone during visitation. Furthermore, the mother alleged that the grandmother wanted to expose the child to another religion other than the one she had been practicing at home. Angered by the mother’s decision to terminate the agreement, the grandmother attempted to seek custody of the child in the Family Part in Passaic County in 2012. However, the court denied the request.
Yet, the grandmother did not stop there. The grandmother asserted that the child contacted her on three separate occasions and told her the following:
As a result of the abuse, the grandmother had contacted the Division of Child Protection and Permanency and the police. However, in both instances the Division believed that the abuse claims were unfounded and that the child should return home to live with her mother, which she did. Yet, when the child returned home in July, she was hospitalized several days later due to a nervous breakdown. As a result, the grandmother instantly filed a request for custody or alternatively visitation of her granddaughter on July 19 th.
After hearing the testimony of the mother, grandmother, and Division caseworker, the court denied emergent relief because it found no immediate, irreparable harm to the child. However, it decided to hold a plenary hearing in October 2013. At the hearing, the grandmother reiterated her point that the child’s mother was abusing her and that she faced a risk of harm living with her. In addition, the mother surprisingly testified that she possibly had a mental illness and a history of assaultive behavior. She conceded to making her daughter kneel on rice, but claimed it was only for a short period of time. Moreover, she conceded that she might have hit her daughter with a closed fist as well.
At the end of the hearing, the court decided to use its discretion to conduct an in camera interview of the child. Following Rule 5:8-6, the parties’ attorneys submitted questions for the court to ask. In particular, one question was whether the child was “ever punched with a closed fist, or hit at home, and whether she was required to kneel on rice.” The court did not ask the question, and failed to state it’s reasoning for doing so.
At the beginning of the interview, the judge told the child that her mother and grandmother would be listening to her answers in court. She promised to tell the truth to the judge and denied that anyone talked to her about the interview or suggested how she should answer the anticipated questions to be asked. She described her lifestyle to the judge, without ever saying she was a victim of abuse or scared of her living environment. When asked if she wanted to see her grandmother, she shook her head yes but did not speak. Also, when asked if she was allowed to talk to her grandmother, the child shook her head no. Finally, when the court asked if she wanted to remain living with her mother, the child smiled and non-verbally indicated a positive response.
When the interview came to an end, the court denied the grandmother’s application for custody or visitation. Most importantly, the court stressed the importance of preserving the mother’s constitutional right to custody of her child. However, the grandmother appealed. On appeal, she argued the lower court made factual errors based off of the child’s responses in the interview and the Appellate Division agreed. The Appellate Division first stated that the lower court should not have provided simultaneous aural access to the interview because it undermined the principal goal of an in camera interview, which is to encourage a child to speak honestly. Quoting the case of Uherek v. Sathe, the court stated that “making the child’s comments readily available undermined the goal of protecting the child’s right to privacy and creating an environment in which the child felt free to speak openly.” Fearful of what her mother might do or say to her, the child was extremely hesitant in the interview and frequently failed to express her views verbally that she believed her mother would not handle well. Additionally, the Appellate Division stated that the trial court judge should have asked the specific question requested by the grandmother’s attorney. Accordingly, the Appellate Division reversed the findings of the lower court and remanded the case for further proceedings.
The main takeaway from the case is that while a judge is allowed to conduct an interview with a child involved in a custody battle, he or she must abide by the court rules and past precedent. For more questions or to discuss this matter further, please do not hesitate to contact my office today.