In Camera Interviews In New York Child Custody Cases

Image depicts child torn between parnets and subject to the court's power

Contested custody cases often have an in camera interview by the judge of the child or children. While not required by law, typically judges will order an in camera of older children if either party, or the attorney for the child requests one. The purpose of the in camera is for the children to be able to express their preferences about who they want to live with to the judge in a confidential setting. Some children are afraid to tell their parents what their preferences are, and for that reason, it would be extremely rare for a judge to deny a request for an in camera by the attorney for the child or children.

The decision as to whether or not to conduct an in camera interview of a child is usually within the judge’s discretions, but it is rare that a judge will deny a request by an attorney for the child to have the child testify in order to express his wishes in a safe environment.

How Is An In Camera Interview Conducted?

The Interview takes place in the Judge’s chambers, or in the courtroom which is temporarily closed to the public. A court reporter will record the interview. Neither the parties nor their attorneys are allowed to be present, but the attorney for the child has a right to be present.

If there are multiple subject children who will be participating, the Judge will typically interview them separately. The children are usually sworn in. Every Judge has his or her own procedure. Some may prefer to let the attorney for the child do most or all of the questioning, while others will conduct the interview themselves. The attorney for the child will be given a very wide lattitude in asking any questions that he or she wishes to ask.

The parties, though their attorneys, are usually allowed to submit written questions to the court in advance, however there is no guarantee the judge will ask them. I have particiapted in a large number of in camera interviews as attorney fot the child, and, to my recollection, I have never known a judge to refuse to ask any relevant question submitted in advance.

It is unclear whether or not these written questions must be exchanged with the other parties, and if so, when. When I have represented parents, I have often been concerned that the other parent, if provided with copies of the proposed questions, could coach the child, so I have typically sent copies of my written questions to adveraries at the “last minute”.

Who Is Allowed To See The Transcript Of The In Camera?

The Transcript is typically “sealed” and is only available to the appellate court, if the cases is ultimately appealed. It is unclear how often appellate courts factor in the child’s wishes as expressed by an in camera interview in coming up with a decision. However in some situations, the attorneys for the parties may be provided a redacted transcript, as discussed in the following paragaraphs.

Controversy About The In Camera Interview In Custody Cases

The use of the in camera interview to allow the child or children to express their preferences to the court in a confidential setting is uncontroversial. Experienced family law attorneys know that a child’s prefereces are not considered by the court to be dispositive, and that the court will usually give them the appropriate weight, depending largely upon the age and maturity of the child.

The controversy comes up when the in camera becomes a forum to elicit secret testimony by the child or children about specific factual allegations made against one of the parents.

Allegations about mistreatment, neglect, or drug or alcohol abuse made during the in camera can be very damaging, and the parent against whom the allegations are made, will have no knolwedge of the allegations, and no opportunity to refute them or explain his or her actions. It is fairly well accepted that children, especially children of certain ages, are not necessarily accurate reporters and can be sometimes be successfully coached.

There have been a few reported cases where the court found that the due process rights of parents required, at the very minimum, that the parents’ attorneys be provided with redacted transcripts of the in camera hearing prior to the end of the trial. The transcipts would be redacted to exclude statements by the child relating purely to their preferences as to which parent they wanted to live with and what their preferences were regarding visitation.

When Is The In Camera Interview Conducted?

If there are no safety issues or unusual issues involved with the case, the in camera interview is most often conducted at the end of the trial. One reason for this is to spare the child or children from having to do the in camera if the case is settled. Another reason is that the end of the trial is the point in time when the Judge will be most familiar with all the issues. It is not unheard of for a judge to completely change his or her mind about what kind of custody orders to make based upon the in camera intervie. The judge ion a custody case has a lot of decisions to make. The judge must decide which parent gets residential custody, what the visitation schedule will be, and what to do about legal custody. the judge can order legal custody to one parent, joint legal custody, or even legal custody with spheres of influence. In making these decisions, the in camera interview may be extremely helpful.

Sometimes there are serious allegations against one of the parents which requires the court to make immediate decisions to protect he child’s welfare, and the only way the Judge is able to get enough information to make an informed decision is after interviewing the child.