The governing standard in cases child custody is the child's best interests, which must be determined on a case by case basis. While each family presents a multitude of unique circumstances, the statutes do list a set of factors that judges must examine prior to making a decision. These factors include “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” In essence, judges can choose to interview children about their preferences concerning issues such as which parent they prefer to live with. As stated, the children must be of “sufficient age and capacity”, but since the statutes do not list a specific age or intelligence level, deciding whether a child should be interviewed is up to the judge.
Interviews between judges and children are typically conducted in the privacy of the judge's chambers, without the presence of the parents or their attorneys. This is to ensure that the children feel comfortable their true feelings, without interference or prompting from the parents. It can also be quite scary for children to be in a formal setting like a courtroom, especially with so many adults hanging on their every word. An informal meeting in the judge's chambers is more like a friendly conversation, although it is recorded, and the attorneys are given a chance to propose questions and topics prior to the interview.
While considering a child's preferences seems like a sensible idea, most judges nowadays deny interview request with children for several reasons. First, most judges do not feel adequately equipped to analyze a child's responses because of their lack of mental health training. As a general rule, judges default to the expert opinions of qualified mental health professionals, who would have had extensive interactions with the child and the parents. Another concern is the possibility of children blaming themselves for the judge's final decision. Since children are not aware of the complex legalities that are involved in a judge's ruling, many of them conclude the judge made his or her decision as a direct result of their interview answers. By using professionals like social workers who know how to approach sensitive topics the child is less likely to connect their responses with the final custody arrangement.
In cases where a judge is seriously concerned about the child's welfare, or the ability of either parent to consider the child's best interests, a Guardian Ad Litem may be appointed to investigate the specific issues that are of concern to the judge. In extreme cases, the judge also has the discretion to request that the child be appointed a legal representative. As you can see, there are various measures that a judge can take to ensure that the child's interests are fully represented. Parents do, however, reserve the right to request a meeting with the judge on behalf of their children. For more information on interviews between judges and children, please speak with the attorneys of Villani & DeLuca, P.C.