In child custody matters, usually both parents think they deserve custody over the other, and that the child will be better off with them. However, most parents do not realize, is that the child’s preference is also an important factor to New Jersey Family Part courts. With that said, a New Jersey Family Part judge may not always interview the child about his or her preference. To find out the if, when, & how a New Jersey Superior Court judge will interview a child in a custody matter, read on.
The Child's Age Matters
New Jersey Statute § 9:2-4 sets forth cert
ain factors which a judge must consider in any custody or change of custody determination. These factors include the child’s preference, as long as that child is of sufficient age and has a reasonable capacity to make an informed decision.
In D.A. v. R.C., father R.C. appealed from a custody order of the Superior Court of New Jersey, Family Part of Hudson County because the judge did not interview the fourteen-year-old child about his feelings and desires concerning where and with whom he would live. The New Jersey Appellate Division held that according to Rule 5:8-6, the New Jersey Superior Court judge must interview the child about the parenting time and custody issues raised by the case, or place on the record reasons for not interviewing child in the father's action to modify the custody and parenting time schedule which was made part of the consent order for joint custody and parenting time. The New Jersey Appellate Division further noted that in coming to a determination, the Family Part judge has to consider the factors enumerated in New Jersey Statute 9:2-4(c), which includes the child’s preference, because of his age and capacity to reason.
According to the New Jersey Rule 5:8-6, the trial judge has sound discretion to decide whether to interview a child in a contested custody matte
r, but must at all times be guided with the best interest of the child in mind. NJ Rule 5:8-6 further provides that the judge should interview the child before the trial starts, unless there is good cause to do otherwise. While the Rule itself uses the word trial, the New Jersey Appellate Division could find no rational basis to not apply NJ Rule 5:8-6 to an evidentiary hearing in a contested child custody matter.
Furthermore, if the Family Part judge decides not to interview the child, he or she must state the reasons for not doing so on the record. Conversely, if the court does chose to conduct an interview, it must give counsel the chance to submit questions for the court to ask during the interview. If the court chooses not to ask any of the submitted questions, the judge must state the reasons for not doing so on the record.
New Jersey Statute § 9:2-4 sets forth certain factors which a judge must consider in any custody or change of custody determination. These factors include the child’s preference, as long as that child is of sufficient age, and has a reasonable capacity to make an informed decision. Simply, reading an affidavit or letter written by the child is does not provide a proper assessment of the child’s capacity to take part in the decision-making process, which is a right protected by statute. In custody determinations, the child has the right to be heard and express his or her preference to the judge. While a New J
ersey Family Part court is not required to abide by the child’s preference, that cannot be a reason to deny the child his or her right to express that view.
In D.A. v. R.C., the New Jersey Appellate Division found that a carefully conducted interview can yield facts, such as, information about activities with parents, interests, friends, and living arrangements, that could be relevant to the custody determination. That said, the New Jersey Appellate Division made sure to note that NJ Rule 5:8-6 does not require that the child be asked to choose between parents. In fact, the appellate panel stated that “no child should be asked to select between two opposing parents.”
Moreover, the New Jersey Supreme Court has ruled that in every custody determination, the child’s preference must be given due weight, as long as that child is of sufficient age and has reasonable capacity to make an informed decision.
Interviewing the Child
If a Family Part judge chooses to conduct an interview of the child, Rule 5:8-6 requires that the court:
(1) Have a camera record the interview
(2) Give counsel the opportunity to submit questions as well as state on the record reasons for not asking any submitted questions
(3) Create an audio recording of the inte
rview
(4) Give transcripts of the interview to both attorneys.
In Kavrakis v. Kavrakis, the Superior Court of New Jersey, Family Part of Bergen County held that the age of fourteen is prima facie starting point for whether a child can consent to a relocation out of New Jersey without the other parent or court’s consent. The Family Part found that according to New Jersey Statute § 9:2-2, provides that if a child states his or her consent to move out of the state with one parent, and is of suitable age, then there is no need for a hearing. Still, the Family Part judge is tasked with
determining if the child is of suitable age to consent, if the consent was informed, and if the consent was voluntarily given. Here the Family Part of Bergen County found that all the factors were in the fourteen-year-old child’s favor, that he was of suitable age to give consent, and had a statutorily given right to move from the state with one parent without the consent of the remaining parent, with a hearing or the court’s consent being necessary. The court found that the specific statutory language “of sufficient age to signify same”, the same being consent of removal, clearly envisioned a child with the capacity to reason and maturity to come to an intelligent decision, who has reached such age and has such mental and emotional development to understand and appreciate the associated circumstances, and the complete consequences of such move or relocation. The Family Part found that a suitable age to fourteen years, as a prima facie starting point. Nevertheless, like all issues that involve consent, it must be voluntarily given, informed, and without coercion or duress.
A child’s consent to move may also serve as a sufficient change of circumstance to warrant a modification in custody. In Mackowski v. Mackowski, the New Jersey Appellate Division held that a sixteen-year-old child’s request to live with the other parent constituted a prima facie showing of changed circumstances that warranted a review of the custodial arrangement. In Mackowski, the father Walter Mackowski filed a motion to transfer custody of his sixteen-year-old daughter from his ex-wife to himself. He submitted three letters in which the daughter expressed her desire to live with her father. He also requested the Family Part judge interview the daughter directly to review her maturity and sincerity. The Family Part refused the request and entered an order without making any findings of fact or stating any conclusions of law. The New Jersey Appellate Division reversed the order, and held that the judge’s failure to interview the daughter was inconsistent with New Jersey Court rule 5:8-6, and thus an abuse of discretion.
It is inappropriate to make a custody determination on an emergent basis without first interviewing the child, as long as there is no existence of imminent or threatened harm.
Please contact my office if you are facing a child custody matter.
Comments