Dear Cassie: If I have a custody dispute with my spouse in our divorce, will my children be witnesses in Court?
-R.E.
Dear R.E.:
You did not indicate in your question the ages of your children. If your children are young, it is extremely unlikely that they will appear as witnesses and testify in your case. Even if they are high-school-aged, it remains very unlikely that a Court would subject your children to the rigors and stress of court testimony, including cross-examination.
That does not mean that your children’s voices will not be considered through different means. New Jersey’s custody statute identifies as a factor to be considered in any custody dispute “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” While a child’s preference is not the sole factor in determining custody, the preference of a child who is mature enough to develop a reasoned opinion is a factor a judge would take into account.
One way in which a child could share his or her preference would be by way of interview with the child by the judge. Usually, this interview occurs “in camera,” meaning, in the judge’s chambers and not in a courtroom. These interviews can occur “on the record” (i.e., the interview is recorded and transcribed) or “off the record.” Counsel for the parties are usually permitted to submit proposed questions for the judge to ask the child.
Contrary to popular belief, in New Jersey, there is no set age for a child at which that child’s preference is considered, nor is there a set age for a child at which a judge will interview the child. As with nearly all issues in family law, it depends on the facts and circumstances of the particular case.
If you are dealing with the issue of custody, you should seek the advice of matrimonial counsel.
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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.
