It is somewhat unusual for a judge to conduct the child interview instead of a mental health professional in custody cases.
I'm going to talk about a question that I got from one of viewers on child interviews in child custody. In this particular case my viewers judge is about ready to interview the children. This case is unusual because it's actually the judge who's going to be interviewing the children as opposed to a mental health professional which is what often happens in Arizona. So before I dive into the answer I want to remind you about why judges might order children to be interviewed in the first place.
As you might think back to the best interest factors i talk about in so many of these videos one of the factors that the judge looks at is what are the children's wishes. When the children are old enough for a sufficient maturity to express themselves then a judge will have them interviewed & there's a couple ways that judges can do this.
The most common way that I see is the judge will order the children to be interviewed by a mental health professional who is qualified to talk to children. But there are situations that I've heard of were actually the judge is the one who does the interview themselves. I've heard that has happened in Arizona. I've talked to other attorneys who said that their judges in their cases interviewed the children
I've never personally had a judge interview the children in one of my cases but I know it's going to happen in this pretty big viewer’s case. So the viewer’s question was “Is by the judge interviewing the children is he or she putting the children in the position of being witnesses in the custody case?” It’s not really a black or white answer. The judge is going to consider what the children have to say as evidence & in some cases the judge may not actually disclose what the children said during the interviews to either party or either attorney. It really puts the parties & the attorneys at a disadvantage because they don't know what the children have said.
In other cases the judges don't order the results of the interview to be confidential. So parents & both attorneys if there's attorneys involved know what the kids actually said but the reason that the judges look to interviewing the children is because they want to make sure the children feel protected, safe & don’t feel threatened or pressured or just totally terrified to go into a courtroom & testify.
If it were my daughter going through a custody battle with the father of my daughter I can tell you that the last thing that I would want is to have her put on the stand and have to testify in court and be examined by the other party or other attorney & then examined by me.
Being asked questions by a judge in the courtroom is really intimidating. For a child not only is it intimidating but it puts the child in the position of feeling like he or she has to choose between parents or sometimes it puts the child in the position of feeling like they have power over the case. It’s just really not a healthy situation in my opinion.
Although you may not get to question the results of the interviewer you may not be a witness to the circumstances under which the interview happened. My feeling is having the children feel safe & not antagonize by being in the courtroom environment outweighs your right to cross-examine them. That’s probably why in most cases involving children where they have wishes when their old enough to express what they want a judge orders an interview where the judge interviews the child themselves.
I can't really say that there's a clear answer as to whether the children are being placed in a position of being witnesses or not. All I can tell you is that whatever the outcome of the interview, the judge is going to consider those results when making a decision about custody & your parenting time. Usually a judge looks at a bunch of different best interest factors in making a decision.
Wendy Hernandez is a family law attorney in Phoenix, AZ and founder of Command the Courtroom which teaches you how to handle yourself in court and achieve the best outcome when representing yourself in your divorce or child custody case.