If the parents cannot agree on who will raise the children how much of the time, then one of the most difficult things that a family court judge has to decide is when to talk to the child. The Judge can ask the child which parent the child wants to live with, for how much of the time, and where.
Usually, age fourteen and older, the child’s preferences will be important. But there is no age limit on this, and the trial judge has to decide in each case, whether to interview the child.
It is really hard on a child whose parents are fighting in court, to have to decide what they want.
And Judges do not want to put a child through the real trauma of talking to a stranger (the judge) about his/her parents, how the parents behave, which parent the child wants to live with more of the time and where. Most judges are very careful about this: no one want to make a child choose which parent he/she loves the most. If the judge decides to talk to the child, it has to be done very, very carefully.
The Court cases give some guidelines on all of this.
In 2021, the Appellate Division decided the case of X.L.S. v. E.R., No. A-0503-20 (App. Div. Oct. 29, 2021), the mother wanted to move from New Jersey to California. Was the Judge going to ask the 11 year old child should be asked about the mother’s request, what did the child want, concerning this move to California with the mother. The Trial Court judge decided not to interview the child, but did not explain why not. The Appellate Court said this:
- Judge have to first decide whether the child has sufficient age, maturity, and intelligence for the trial judge to give due weight to that child’s preference.
- As part of the custody hearing, the court may conduct an interview in the Judge’s office with the child. If the Judge decides not to conduct an interview with the child, the Judge has to explain in Court the reasons for that decision.
- Courts recognize it is an exquisitely delicate task to interview a child to consider their preference. The goal is that all of the judges assigned to the Family Part will strive to conduct the difficult task of interviewing children in contested custody cases with dignity, compassion, and great sensitivity.
In an older case, the decision was that Trial court was required to either take into consideration 14-year-old child’s feelings and desires concerning where and with whom he would live or place on the record reasons for not interviewing child in father’s action to modify custody and parenting time schedule that was part of consent order for joint custody and parenting time; preference of child of sufficient age and capacity to reason was factor court was to consider under best interest of the child analysis, parents alleged that child was emotionally mature and intelligent, and it was in court’s discretion to interview child under rule providing for interviews of children in child custody proceedings. N.J.S.A. 9:2–4(c); R. 5:8–6. That was the Appellate Division’s decision in 2014 in D.A. v. R.C., 438 N.J. Super. 431, 105 A.3d 1103 (App. Div. 2014)
But every time this issue comes up, the Judge are very careful of the child’s emotional well-being.
If you get into a custody fight, you will want to take this into consideration, whether or not to have the child talk to the Judge who will be deciding the custody issues.
Determining what custodial arrangement is in the best interest of a child requires the Family Part judge to apply the statutory factors outlined in N.J.S.A. 9:2–4, as complimented by the relevant court rules governing an award or change of custody, and reach a conclusion that is supported by the material factual record. Absent exigent circumstances, changes in custody should not be ordered without a full plenary hearing.
J.S. v. C.B., DOCKET NO. A-2447-14T1 (App. Div. Apr. 14, 2016)