The New Jersey Rules of Court grant trial judges discretion whether to have children testify at a hearing on child custody and parenting time. If that takes place, it won’t be held in open court but rather as an interview in the judge’s chambers. The judge would need to feel the testimony is relevant, it’s in the child’s best interests, they’re mature and intelligent enough to testify truthfully, and understand what’s happening.

What’s the Rule?

 Rule 5:8-6 states:

“Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading. The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action. As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an [in-chambers] interview with the child(ren). [T]he decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment of the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court. Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody. Any judgment or order pursuant to this hearing shall be treated as a final judgment or order for custody.”

In a custody dispute, New Jersey allows judges to consider or ignore a child’s preference as to which parent the child prefers to live with more or most of the time. Judges in other states must consider the testifying child’s opinion.

How Old Must the Child Be to Testify?

 There’s no age range. A judge will consider a child’s maturity, intelligence, and ability to reason before having them testify. Some older children are immature, while some younger ones may be completely capable of handling the situation.

How Might a Child Approach the Situation?

A child’s reaction to the interview process will vary based on their personality, desires, and motivations. Some children may be frightened of the situation and not want to be seen as “ganging up” on one parent. Others, justifiably or not, may not want one parent to have custody and may be eager to voice an opinion. Some children recognize that they’re the focus of this struggle and want their voices to be heard.

When Would a Child Want to Testify?

Some judges may be more reluctant than others to involve children in custody proceedings. With such judges, children are more likely to testify if they’re fact witnesses to disputed events involving their parents. If a judge is confident a child is mature and handles the situation well, they may be open to allowing a child’s testimony to influence the outcome.

How Do Such Judicial Interviews Actually Work?

The judge may start with “small talk” and try to build a rapport with the child to put them at ease and get an idea of their vocabulary, personality, and communication skills. A judge may also try to make the child understand they’re looking for the truth, and that’s what the child should state.

As the Rule states, the judge may question the child in their chambers, with parents and their attorneys out of the room.  A court reporter will be present to record the proceedings. The attorneys may submit questions beforehand, but the judge asks what they feel is appropriate. The attorneys can get transcripts afterward, which can be shared with the parents for reading only, not to take home or have on a computer.  The contents of the interview must not be discussed between parents and children.  Forensic expert witnesses, like child psychologists, can review the transcripts.

What are Considerations for Parents?

There’s a difference between preparing a witness and coaching one.

You can prepare your child by explaining what will happen and what might be asked. Tell them to try to relax and to only tell the truth. They need to listen to the judge, think for a moment, and answer the questions honestly. If they don’t know the answer or can’t remember an incident the judge asks about, the correct response is to admit that. If they don’t understand something or have a question for the judge, they should let the judge know.

This isn’t school, this isn’t a test, they won’t be graded, and this isn’t pass/fail. It’s a conversation.

Don’t coach your child by telling them what to say. You put yourself in a situation where a judge may ask your child if a parent told them what to say. If they say you did, that will make you look terrible and could jeopardize your case. If they say you didn’t, but you did, then they are lying for you.  Don’t implicitly or explicitly promise some benefit or punishment if they say or don’t say something.

Your child may say something unexpected. They have a different perspective and may remember events differently than you do. If something they said harms your case, don’t get angry with your child or punish them. If you do, then you most likely shouldn’t have custody of them.

Get the Help You Need from a Child Custody Attorney You Can Trust

The attorneys at the Kingston Law Group are compassionate counsel and tough advocates. Call us at 1-609-683-7400 or contact us online to schedule a near-term reduced fee initial consultation at our Central Jersey offices in Princeton. We will listen to your facts, advise you on the law, and recommend the best legal route for you to attain social justice. Call us today. You will be glad you did.