Questioning Children In Contested Child Custody Hearings

Questioning Children in Custody Hearings

Contested child custody hearings will often involve a child’s testimony about their relationship with each of their parents and, depending upon their age, their preference regarding who the child wants to live with. In New Jersey, the judge will consider the child’s preference if the judge considers the child to be of sufficient age and emotionally mature. However, a child cannot fully determine who they want to live with until they turn 18.

Why Do Children Get Questioned During Custody Hearings?

During a contested child custody hearing, the family court judge will interview children as part of their investigation to decide what is in the best interests of the child. While each parent works with their divorce attorney to prepare for the hearing, the goal is to keep the children minimally affected by the proceedings. Therefore, the judge attempts to make the interview as unobtrusive as possible. The answers from the interview will play a role in the decision, but they will not be the only factors considered by the judge. Some of the answers sought by the judge include the:

• Relationship between the child and each parent
• Parenting style of each parent
• Child’s preference about which parent they would prefer to live with
• Reasons why the child feels this way

When Should Judges Question Children?

Ideally, judges should question children once the children have been able to spend a significant amount of time with each parent separately. Often, this comes after the parents have been separated for an amount of time that would allow for the children to speak about them as separate entities, which would allow the children to answer questions from the judge about how each parent cares for them at home. Once the children can observe their parents in different home environments, the information that they provide the judge will help with a determination regarding custody and visitation rights.

Understanding the Process

Before the interview, you and your divorce attorney might prepare the child by letting them know that they will be speaking to the judge about the situation. However, the child should not be told about the types of questions they will be asked or about the answers they should give to avoid the other parent alleging that you coached the child. Additionally, giving too many details might lead a child to develop anxiety.

When a judge interviews a child during a contested hearing, they usually do it in their private chambers, on camera, with the court reporter and the child’s guardian ad litem present. The judge takes time to get to know the child, so the questions to begin the interview might be about the child’s interests and details about their life, such as school, friends, and extra-curricular activities. They can also include questions about how their parents’ divorce has affected the child.

As part of the process, the judge might reassure the child that answering these questions does not mean they do not love their parents equally. Once the child is comfortable, the judge will proceed to ask questions about the child’s experience at each home and the parenting style of the parents.

Challenges Faced By Judges When Questioning Children

Interviewing children during custody cases takes experience and preparation developed over time. While judges want to make sure to hear a child’s voice and views, gathering this information is not always easy. As part of this journey, there are some challenges judges might face. These include:

• Lacking the correct interview skills
• Over- or under-valuing their judgment skills when it comes to children’s feelings
• Dealing with unexpected or surprising answers from the children

Types of Questions Used by Judges

Once the judge has made the child feel comfortable during the interview and they have established some rapport, the judge can begin asking the child the questions that will best help them make their decision. These will focus on the interactions between the child and each parent in the different home environments and will help the judge determine which parenting style is best for the child to grow in a safe, supportive environment.

Some of the questions the judge might ask include:

• What is each parent like?
• What are the best traits of each parent?
• What does each parent struggle with as a parent?
• What does the child do with each parent when they are together?
• How does each parent react when the child does something wrong?
• Does each parent help with homework?
• Does each parent arrive on time for the child’s events?
• Which parent does the child help the most, and what does that care look like?

How Judges Evaluate Children’s Answers

A major goal of the judge’s interview with the child is to figure out each person’s parenting style. When deciding to award custody, the judge will be looking to see which parent is caregiving. A caregiving parent will provide nurturing, love, and support for their child. This parent can empathize with the child and understand the way the child sees the world and approaches situations.

They will also be able to set rules and provide appropriate discipline for the child while helping them continue to develop healthily. This parent understands that the child might not always agree with them and that this is acceptable. Finally, this parent does not depend on the child for emotional support and care.

On the other hand, the judge might determine that one of the parents is a care-consuming parent. A care-consuming parent demands that the child provide emotional support to them. While the judge will evaluate the answers and seek to grant custody to the caregiving parent, they will often also award frequent visitation to the other parent, to both continue to promote the bond between the parent and child and to allow the child to see the reality of each parent.

Other Factors Used To Determine Custody

The interview with the child is only one of the factors that the judge will use to decide which parent should be awarded primary physical custody and which parent should be limited to visitation. Other factors that a judge might consider include the:

• Physical and mental health of each parent
• Child’s adjustment at school and other activities
• Child’s interactions with their relatives and friends
• Community relationships that a child may enjoy with each parent, such as belonging to a church or a civic or recreational organization
• History of child abuse or domestic violence by a parent
• History of substance or alcohol abuse by a parent
• Ability of each parent to take care of the child
• Probability of each parent supporting and encouraging the relationship between the child and their other parent

If you are involved in a contested child custody case, the experienced New Jersey family law attorneys at the Law Offices of Kelly Berton Rocco are ready to hear what you have to say and what your goals are. Call us today at 201-343-0078 to make an appointment for your consultation at our Hackensack office. You can also use our contact us page to reach out to us with your information.