Under the New Jersey Court Rules, a trial judge presiding over a custody hearing is free to conduct an in-camera interview with the children whose custody is at issue, whether on the judge’s own accord or upon a party’s request. This authority to conduct interviews furthers a judge’s ability to evaluate the statutory custody factor of “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.”
However, as Eric Solotoff noted in a recent post discussing a trial court’s failed attempt to interview a 4-year-old child as to her custody preference, this practice tends to be somewhat controversial. Given the potential for a scenario wherein an interview may be more harmful than helpful, the court is equally free to opt against conducting an interview, but it must state the reasons underlying its decision on the record.
The Appellate Division recently reiterated its preference against conducting custody interviews of children where the child’s individual characteristics and circumstances render the interview likely to cause high stress, yet unlikely to yield reliable results. Specifically, in the unreported (non-precedential) decision S.L. v. T.B. released on January 28, 2025, the Appellate Division articulated its support of a trial court’s decision not to interview two children, one of whom was diagnosed with autism spectrum disorder and learning disabilities. The trial court had previously indicated it would conduct interviews but reconsidered its decision. It emphasized the facts that one of the children has special needs and that both children had already been subjected to multiple interviews outside of court.
This was a high conflict case involving mutual accusations of verbal and physical abuse, leading to an investigation by the Division of Child Protection and Permanency (DCP&P) as well as the procurement of Temporary Restraining Orders by each party against the other, which were ultimately resolved through civil restraints.
The parties had the opportunity to present testimony themselves as to the children’s custody preferences. Their testimony served as the sole basis for the judge’s finding that both children expressed a desire to be with both parents. Notably, neither party retained an expert, though the trial court heard from the school psychologist working with the child with special needs as a fact witness.
Importantly, the children had already been interviewed by DCP&P and the military and subjected to a Custody Neutral Assessment evaluation also involving an interview (more on the latter here). The parties and their counsel had all agreed that interviews of the children by the court would cause the children to suffer from stress, particularly the child with special needs.
However, on appeal, the defendant mother argued that the trial court had abused its discretion and deprived her of due process when it denied her access to reports underpinning its decision to not interview the children. She claimed the problem was “compounded” when the judge ultimately reversed its decision not to interview the children.
The Appellate Division emphasized a court’s special obligation to protect a child’s interests and the importance of a child’s voice in making custody decisions, citing to Mackowski v. Mackowski , a 1998 decision:
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.”
The Appellate Division appears to be less persuaded by the above principle, though, in a scenario where the children had previously participated in multiple interviews. In S.L. v. T.B., DCP&P and even the military had already interviewed the children. To subject the children to another interview, even by a mental health professional experienced in working with children with special needs, would result in more harm than benefit in the trial court’s opinion. The Appellate Division quoted Mackowski’s warning that “nothing the judge or any other person can say or do will ever convince the child that he or she is not responsible for the ultimate decision that is made. This is a burden no child of any age, should ever carry.”
Thus, while the Appellate Division places continued emphasis on the value of accurately determining a child’s preference as to custody – as discussed in another unreported (non-precedential) decision in 2024 – it also continues to recognize the value of accounting for a child’s individual characteristics and circumstances in deciding whether to interview the child directly as to his or her preference.