When Your Child Talks to the Judge: In Camera Interviews

By Rebecca Crumrine Rieder of Hedgepeth, Heredia & Rieder

rebecca crumrine riederWhen a divorce case goes to trial, emotions may run extremely high, particularly when issues of custody arise. Putting children on the stand in front of their parents can be incredibly stressful, because they feel they are being asked to choose a parent. The judge may decide to first have an “in camera” interview with the child. “In camera” is Latin for “in the room.” The room in this case refers to the judge’s chambers, or at least to the meeting place of the judge’s choice.

What exactly is an in camera Interview?
An in camera interview is a conversation with the judge in his or her office as opposed to an affidavit or testimony in open court. In camera discussions are not testimony, are not evidence and are not to be relied on in making a ruling. At its most basic, it is a conversation between the judge and the children in the case.

Who may be present in the interview?
The people who are present at an in camera interview are at the judge’s discretion but should always include:

  • The judge

  • The child(ren)

  • The attorneys representing the parents (although they do not ask questions unless given permission to do so by the judge)

Other attendees may include: 

  • A guardian ad litem, if appointed, may be present
  • A transcriptionist may also be there, although a transcript will not be made available to the parents
  • Anyone else the judge deems appropriate, such as a child psychologist

in camera means in the judges chambers

Why would an in camera interview take place?
Divorces can be emotional and difficult, especially for children. More than anything, children don’t want to upset or anger their parents. The judge is the decision maker regarding custody and parenting time and must base the decision on what is in the best interest of the child: determining what will promote the child’s welfare and happiness. The judge may wish to shield the children from as many of the harmful effects of a custody battle as possible.

Some judges conduct in camera interviews as a way to better understand the children in every case, while others conduct them only at the request of one or both sides of the case. 

Think very carefully about the impact on your child before you, or your attorney, request that your child be involved in the litigation by testifying, coming to court, or requesting that your child “talk to the judge.”  

What if I don’t want my child to be interviewed in this way?
In camera interviews are at the discretion of the judge and so not something you can decline. It’s understandable to worry that part of your divorce proceeding will take place out of your purview. However, your attorney may insist on his/her appearance for the interview, and the judge’s interest is rooted in making this challenging process as easy as possible for your child. Remember, any information from the in camera interview is not testimony and thus cannot be the sole consideration for a  ruling.

Is there a better way to get the information?
Courtrooms are imposing places with many formalities, and can overwhelm children. The more informal setting of an office, without the children worrying about the impact on one or both parents of what they are saying, can facilitate a more honest exchange.

Also, consider other means to have the child’s voice heard without injecting the child into the litigation. Such considerations include the use of a Guardian ad Litem, a person meeting specific qualifications who is appointed by the court to investigate the issues of custody and parenting time, and then make a recommendation to the court, and/or a custodial evaluator, a psychologist licensed to conduct forensic evaluations of the family and make recommendations to the court.    

Because the in camera interview is not testimony in the case, and is more informal, the judge may ask less daunting questions in attempts to put the child at ease, starting with simple ones like, “When’s your birthday?” and “Who is your favorite Star Wars character?” before gently asking the child to share some feelings about his or her life.

What occurs during the in camera interview cannot be the basis for the the judge’s ruling on custody. There must be other evidence properly introduced and relied on to support the ruling. An in camera interview does not necessarily preclude a child from testifying if the other side subpoenas the child and if the judge allows the child’s testimony in open court, but in certain extenuating circumstances in camera interviews may be helpful to the court, and to the family.  

Door to judge's chambersIs my child competent for an in camera Interview?
Not every child is competent to participate in an in camera interview. A judge must first determine a child’s competency prior to starting the in camera interview.  Factors the judge may consider include:

  • Age and maturity: Is the child old enough and mature enough to answer questions about his or her life?

  • Is the child capable of understanding an oath to tell the truth, and able to understand the importance of telling the truth?

  • What is the relationship of the parents? Is there are chance that one or both parties are attempting to unduly influence the child’s behavior?

Children often feel, regardless of reassurance from their parents, that they are responsible for the divorce. An in camera interview may or may not add to this perception.  

One possible benefit of an in camera interview is that it provides an opportunity for the judge, who is an authority figure and the decision maker, to reassure the child that it is the judge makes the decision regarding custody and parenting time, not the child.