Clients often ask me if their son or daughter can testify in a custody dispute.   The answer to that question is very fact-specific in New Jersey, where judges are granted a great deal of latitude in deciding whether to meet with the children for an “in-camera” interview.

New Jersey Court Rule 5:8-6 provides that:

“As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the 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.”

The overarching principal in New Jersey family law courts is this: the judges must at all times act in the best interests of the children.  To some extent, that means a child’s (particularly a younger child’s) preference as to custody is often just one of many factors to be considered.  Moreover, many judges will deny meeting with younger children at all, out of concern that the process may make the child fearful or place the child in a difficult situation emotionally.  Again, for teenagers (and particularly older teenagers) these concerns are somewhat mitigated.

Conclusion

Decisions as to whether children can testify in custody disputes are resolved on a case-by-case basis by the acting judge(s).  There is no guarantee that a child will be allowed to testify.  Because this issue is so fact-sensitive, it is important to discuss same with a New Jersey attorney or other expert to determine the likely outcome.

 

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.