Dear Utah Divorce Courts

Trial courts in Utah are authorized to interview children in child custody disputes (Utah Code Section 30-3-310(1)(e)).  Most courts, however, refuse to do it, and instead usually order ruinously expensive custody evaluations, appointments of lawyers for children (called GALs), and a host of other things to avoid directly talking with the children whose fate the courts decide.

Certainly there are times when an interview of a child would be inappropriate (too young, to give just one example), but an absolute refusal to interview any child in any circumstance is indefensible.

Recently the Appellate Division of the New Jersey Superior Court issued a decision, D.A. v. R.C. (12/22/14 D.A. VS. R.C. A-4030-12T2 –, that caught my attention with its discussion of trial courts interviewing children in custody dispute cases.  While there are differences between the laws of New Jersey and Utah, the upshot of the decision in D.A. v. R.C. is universally applicable to child custody cases.  I recommend that any parent, that parent’s lawyer, and that parent’s judge in a custody dispute read all of this, if not the entire appellate division decision:

We appreciate the concern expressed by the judge that by compelling [this sixteen-year-old girl] to submit to an interview, the judge was compromising her loyalty to both parents by requiring her to “choose between the two.” While such a view may have surface allure, in reality, it is both too narrow and, ultimately, unfair to the child.

In making a determination as to an award of custody, or in this case a change in custody, a judge is charged with considering . . . an assessment of “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.”

The proper assessment of a child’s ability to participate in the decision-making process . . . cannot be performed by a simple reading of an affidavit or letter from the child. [W]e cannot accept such denial [of an interview and hearing] is protecting the child.

The child has a right to be heard and voice an opinion to the finder of fact and ultimate decision-maker. The court need not be bound by the child’s view but that cannot be a basis for denying the child the right to express a view if he or she chooses to do so.

We recognize that some judges prefer not to be involved in a process which can be uncomfortable for both the judge and the child. That, however, provides no justification for abrogating the responsibility to perform a function mandated by our rules of court and necessary to fulfill a statutory duty.

 The concern that judges are ill-equipped to conduct such interviews speaks to the need for enhanced judicial training.

 A carefully conceived and conducted interview can produce facts, including, among other things, information about interests, activities with parents, living arrangements and friends, that may be dispositive and at no time require that the child be confronted with the ultimate question requiring that an election between parents be made.

 We agree that no child should be asked to select between two opposing parents, and R. 5:8-6 does not speak in such stark terms. In this case, [the child] was sixteen years old, less than two years from majority. She filed a letter with the court expressing her preference for living with her father. An interview was necessary to allow the judge to carefully test the bona fides of [the child]’s alleged choice.

[Mackowski v. Mackowski, 317 N.J. Super. 8, 12-13 (App. Div. 1998)] (emphasis mine)

The Appellate Division went on to give further guidance for how trial judges in New Jersey should conduct child interviews:

We sympathize with the trial judge’s consternation and share his concern for the emotional trauma Jeremy may experience during the interview process. N.J.S.A. 9:2-4(c) does not require the judge to ask a child to select between two opposing parents. The statute only requires the judge to consider the child’s “preference,” when he or she is “of sufficient age and capacity to reason so as to form an intelligent decision[.]” In going about this exquisitely delicate task, we strongly suggest trial judges to keep in mind Judge Carchman’s wise observations in Mackowski.

Too often, judges deciding issues in the Family Part must rely solely on the “voices” of the attorneys who prepare the competing affidavits and certifications on the pretense that the litigant is speaking. [The judge’s interview] insures that where custody is a “genuine and substantial” issue, the judge will not be insulated from seeing and hearing the subject of the dispute. The “voice” seen and heard will not be that of the lawyer or litigant but that of the child who is the subject of the dispute. The value of a properly conducted interview enabling the judge to see and hear the child first-hand outweighs the possibility of harm that may befall a child by being subjected to the interview process. On balance, it is not the interview that is ultimately harmful, but the custody dispute between the parties that potentially wreaks havoc with the child.

[Mackowski, supra, 317 N.J. Super. at 14]. (emphasis mine)

We have complete confidence that this judge, indeed 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 to the extraordinary circumstances that have brought this child before the court.

(emphasis mine)

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