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Custody Determination Overturned Because Trial Court Did Not Interview Child

In every custody dispute, a trial judge must decide whether to interview the parties' child(ren). It is a difficult decision for most judges as many feel that in interviewing the children, they make the children feel like they must choose one parent over another. The courts never want to put that burden on a child, even though the child's preference as to a custody arrangement should be considered according to our statute. In deciding whether to interview a child, a child's age may be another issue as most judge's will not interview a child younger than seven or eight. If a trial court decides not to interview a child, it must explain in its decision/opinion why it did not do so.

In a recent decision by the Appellate Division, a trial court's custody determination was reversed in part because the trial judge failed to interview the child, who was fourteen years old when the custody determination was made and sixteen by the time the appeal was decided. The trial court did not explain in its decision why it failed to interview the child. The Appellate Division held that given the child's age, maturity, and level of intelligence, the trial court was required to take into consideration his feelings and desires concerning where and with whom he should live. At the very least, the judge should have recorded his reasons for not interviewing the fourteen year old. The matter was remanded back to the trial court so the parties could attend mediation. If mediation fails, the trial court would then have to make a decision on interviewing the child before having a hearing. 

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