In Camera Interviews of Children in Divorce Court

What is an in camera interview? The phrase “in camera” is a Latin term defined in Black’s Law Dictionary as: “In chambers; in private.”  The interview does not involve a camera or a videotape at all!  If a party is asking for the Court to have an in camera interview of a minor child, the request is for the Judge or Magistrate to interview the minor child privately with neither parent or his/her attorney being present.  An Appellate Court in Michigan said it very well years ago . . .

“A child custody determination is much more difficult and subtle than an arithmetical computation of factors.  It is one of the most demanding undertakings of a trial judge, one in which he must not only listen to what is said to him and observe all that happens before him, but a task requiring him to discern and feel the climate and chemistry of the relationships between children and parents.  This is an inquiry in which the court hopes to hear not only the words but the music of the various relationships.”  Dempsey v. Dempsey, 96 Mich. App. 276, 289 (1980).

What is the goal of an in camera interview? The goal is to provide the minor child with the comfort and security to be able to express his/her wishes regarding custody, visitation, and other child-related matters in a safe, non-adversarial environment with neither parent being present to hear what the child is saying.  The Court must determine what is in the child’s best interest, and this is one way to gain insight to the issues in dispute.

Who is present at an in camera interview? The interview is conducted by the Judge or Magistrate assigned to the case.  If a Guardian ad Litem has been appointed to assist with the case, the Guardian ad Litem may also be present for the interview.  That determination is up to the Court.  A court reporter is typically present to transcribe the interview, but the interview transcript is not available to either party/parent or to his/her counsel in order to provide some level of confidentiality to the child’s wishes.

How is the in camera interview conducted? Not surprisingly, every Judge has his or her own style.  Most try hard to put the child at ease and chat in a conversational manner to minimize the child’s discomfort.  Typically, the Judge won’t just blurt out a question such as “Where do you want to live?”  Judges try to get a true sense of where the child is coming from, but also try to detect if a parent has perhaps intentionally or unintentionally placed pressure on the child to express a certain opinion.

How does one obtain an in camera interview? Either party may request an in camera interview of the minor child/children by filing a Motion with the Court in the pending action.  A minor child should not be brought to Court for an in camera interview unless the Motion for the interview has been granted by the Court setting a specific date and time for the interview to take place.  Divorce Court Judges generally do not want children being brought to Court and “caught in the middle” of the litigation between their parents.  While the Judge must ultimately determine what is in the child’s best interest, you need to be sensitive to the pressure this process places on a child.

When does an in camera interview take place? The Court usually wants to conduct the hearing and hear the evidence before the interview of the minor child takes place.  But, each Magistrate or Court handles these interviews differently.  In addition, many Courts have their own rules regarding in camera interviews.  Sometimes the Court will set a separate date for the child to be interviewed, not wanting to conduct it on the same day as the hearing or trial.  Most Judges/Magistrates will, however, ask the attorneys for an overview of the suggested topics to discuss in advance of the actual interview.

How old does a child need to be for the in camera interview? The law says that the child must be a minor and not under a legal disability.  The Judge must first determine if the child is of sufficient age and maturity to express his or her opinions.  If the child is “too young” or immature, his or her wishes may not be considered by the Court.  Obviously, the older the child, the more likely his or her wishes will be considered by the Court.  There is no automatic age of election in Ohio, so no child regardless of his/her age has a “right” to select which parent obtains custody.

Can I block the Judge from conducting the in camera interview because I don’t want my child subjected to it? Probably not, absent some unusual circumstances.  When a Motion for the in camera interview has been filed, you have an opportunity to object or respond with your position.  But, it has been held that the plain language of Ohio Revised Code Section 3109.04(B)(1) absolutely mandates the trial court to interview the child if either party requests the interview.  If the child is in counseling, it would be good to mention it to his/her therapist in advance of the interview so that the therapist can try to de-stress the entire process with the child.

Will the Court conduct an in camera interview if a Guardian ad Litem has been appointed? Yes.  While some might think it would be duplicative with a Guardian ad Litem investigation, if one parent requests an in camera interview, it must be conducted even if a Guardian ad Litem has been appointed.

Will I learn what my child has told the Judge in the in camera interview? Typically, the Judge will bring the attorneys into the courtroom or chambers at some point after the interview and share a sense of the content of the interview.  Most Judges are somewhat guarded and prefer not to divulge too much detail from the interview in order to avoid possible retaliation by an unhappy parent.

Conclusion:

Parents and counsel should be very cautious about requesting in camera interviews.  Realize that even having a “private talk” without the attorneys and parents present may make the child feel like he/she has “testified.”  Keeping the children out of the middle of the divorce or custody litigation should be a high priority.  Try not to put your child in a position to have to “make a choice” as to which parent to live with.  This can be extremely unfair and can create huge pressures on a child.  Ideally, the only time an attorney should consider having a child participate in an in camera interview is when the child has voiced a strong desire to do so, and the child’s wishes are critically important to the determination at hand.

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Anne Shale

Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.

www.hcmmlaw.com