While it doesn’t happen in every case, from time to time there is a request made by a client or opposing counsel to tape the meeting between the opposing expert.  This happens more frequently in contested custody cases, but it could happen as to any expert, I suppose.  The general rule seemingly had been that these sessions can be taped (with notice – not surreptitiously).  Why do people want to do this?  Some people are not trusting.  Others want to make sure that they are not misquoted in an experts report.  Some even do this if an expert is known to ask leading types of questions suggesting a response that may then be used against the party being interviewed.

A question recently arose as to whether the experts can be compelled to tape all interviews, not only of the one party, but of the children too.  In a reported (precedential) trial court opinion in the case of Koch v. Koch which was decided last year but approved for publication last week, the judge refused to allow all interviews to be taped.  Specifically, the court concluded that concludes that a party has the right to record his or her own interviews with a psychologist or psychiatrist, but does not have the right to compel the other party’s expert to record interviews of the other party or the parties’ children.

As to the general rule noted above, the judge here was not so sure and the opinion included a threshold discussion as to whether expert interviews in a custody case could be taped since the case that lawyers generally relied on involved the taping of a session with a psychologist in a civil litigation.  Notwithstanding the conclusion, the judge noted:

Accordingly, a custody evaluation is an expert report where the court expects, and is
assisted by, the independent professional judgment of a licensed mental health expert.  Requiring recordings could undermine the very purpose of the evaluation. If the children know that they are being recorded, and know that their parents are in a custody dispute, the children might be less candid for fear that their parents will hear what they say to the evaluator. Such recordings effectively bring the parents into the children’s interviews and could distort the information needed to prepare an accurate and balanced evaluation.

The trial judge then boiled the issue down to it’s basics as follows:

The fundamental issue then becomes: is it in the best interest of children to allow their parents to have access to the children’s interviews? The evaluator often observes and has discussions with the parents while the parent interacts with the children. When, however, the evaluator speaks to the children alone, the very purpose of that interview is to obtain the children’s independent views. Giving parents recordings of those interviews, albeit after the fact, undercuts the very goal of the interview and prevents the evaluator from getting the candid views of the children because the children will know that their parents will be listening
to the interviews.

Of even greater concern is the high potential for misuse of the recordings of the
children’s interviews. In contentious custody disputes, it is not hard to imagine how  a parent could confront a child with the child’s own words or make a child believe that he or she has somehow been disloyal to that parent. Even the best meaning parents, when concerned by what they heard in their child’s recorded interview, may let words or information from the child’s interview slip that may cause anxiety or harm to the child. It is important to keep in mind that children being interviewed in a custody evaluation are aware that their parents are in a child custody dispute, and they may already have anxiety and concern over their role in that dispute and how the custody arrangements will be resolved.

Against the obvious potential harm to the child, it is hard to identify a legitimate need
for the disclosure of the child’s interview. As already pointed out, the proponent relies on the need for open discovery in custody matters. It is worth reiterating that custody evaluations are not discovery devices. Indeed, the children have not brought the action; rather they are innocent children swept up in a dispute between their parents. In short, litigants’ rights to discovery cannot trump the court’s responsibility to protect the child. As a consequence, if one party hires an expert who chooses to record all interviews and make those recordings available to a party, that party will need to obtain the permission of the court before the expert can release any recording of a child’s interview to any counsel or to any parent.

The court concluded that it had the power to decide if, and under what conditions, any mental health expert can make recordings of children’s interviews available to counsel or a party when that interview is conducted as part of a custody evaluation.

Being a trial court opinion, it is not binding on other trial courts or the Appellate Division, however, it is persuasive.  However, since custody reports often quote or characterize things that a child says, one wonders whether the court needed to go this far because parents get to see the reports.  The difference, however, is that the report is after an evaluation and not during where a child can try to "change" what he/she said.  Moreover, the parent that might use the information in a recording is likely the same parent that would grill a child after their interview with the expert anyway. 

In any event, this case does provide some useful guidance and well reasoned analysis.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.