Without knowing the facts of your case, it’s impossible to say whether or not a judge will definitely speak to your children in the course of your divorce and custody hearings.
In New Jersey, judges have discretion to interview children involved in a custody matter. A judge is required to use his or her best judgment as to whether or not an interview is necessary, based on many factors, including the unique circumstances of the child custody case, the child’s age, and the likelihood of obtaining testimony of any value to the case.
In an attempt to elicit a child’s cooperation and engender a sense of safety, some judges tell children upfront that anything said in the interview will remain confidential. A child is usually told that neither of the parents will ever know what is said, which is not true.
In most cases, a court reporter is transcribing the interview for use of all attorneys, and also both parties to the custody matter. A child old enough to understand this betrayal by an authority figure is not going to benefit from it, especially in the midst of a divorce.
So, other judges choose to tell a child that there is a possibility the transcript will be seen by the parents, but only at the judge’s discretion. Knowing each parent may find out what is said in the interview, many children experience great anxiety and tend to lie. They do what they can to get out of the situation without hurting their parents, if possible, and to end the interview quickly.
Interview of a child generally consists of simple questions, yet none that can be answered with “yes or no.” Although those are the questions preferred in the courtroom, they don’t provide the best child interview results. Much better are questions inviting a longer answer, such as, “Tell me about your father (or mother),” and questions with a focus on the facts, beginning with, “what, where, who or how.”
It’s easy to see that the complexity of interviewing children, especially small children isolated from their parents in a room alone with strangers, is not the best environment for getting accurate testimony. But it’s important to understand that judges have this option and may choose to interview your child in your New Jersey custody matter.