Friday, August 7, 2009

Opinion: Interviewing a Child By a Judge

Warning: I use opinion above to indicate when I am about to shoot off my mouth, Read on if you like but you have been warned.

In my experience, having a judge interview a child in chambers is generally a waste of time.

Parents come to me and say that the child will say z if they can talk to the child. From the results obtained, I think the child must have said a instead.

My first experience with this ought to have been my last. I seem to recall the case being from 1994 but may have been 1993 or even 1995. Father brings me a custody case. Father says children will say tell judge how badly things were in custodial home. No one wanted to put the children in the middle of the proceedings by putting them on the witness stand. Mother lived in Indianapolis and so we had a lack of sources for evidence about what went on in the home. Father adamantly wanted the children interviewed by the court. I set up the issues for the judge to ask the children by what I asked the witnesses. Client keeps telling me what the children have said they want to tell the children. Judge interviews the children. Judge decides that there are no grounds for changing custody. Bad things happen to the daughter after the hearing. Client calls me to blame me for the bad things that happened to daughter. (Yes, clients treat their lawyers like this and maybe that explains to you why lawyers do not take some cases or some clients).

That case remains in my mind to this day. I know now that Father ought not have put all of the case on the child's interview with the judge. On the other hand, Father lacked the money to fund a full investigation of the home. What would I do different today? I see three choices:

  1. Not take the case if the client could not pay the costs below.
  2. Do a home inspection and have a videographer along for the inspection.
  3. Depose the children.
  4. Although inapplicable in the original case, have the children testify.
For many years now I explain to clients not to expect to aw judicial interview to make their case. I do not proceed unless they understand that the case will not depend on the interview and any case so depending will likely lose.

After the last such case, the client came up to me and told me that I had been right and they were wrong. I think they were impressed by that. They did bring me another case in just the past few months.

I should say that there was one successful child interview case. Both opposing counsel and I were present, but I still put it down to the child was a most unusual child.

I think I will be remiss if I do not give the statute on the subject:

IC 31-17-2-9
Court interview of child in chambers
(a) The court may interview the child in chambers to ascertain the child's wishes.
(b) The court may permit counsel to be present at the interview. If counsel is present:
(1) a record may be made of the interview; and
(2) the interview may be made part of the record for purposes of appeal.

As added by P.L.1-1997, SEC.9.


MikeD said...

Thanks for sharing that Sam! I've followed this issue and came across a commentary essay by an Arizona family therapist who had beoome opposed to 'en camera' judicial interviews of children. As an advocate for the children of NCPs. I also found an on-line Chicago-area attorney's blog, in which he reported Illinois judges as being generally resistant to interviewing of children, for many of the same reasons you point out.

Mike Doherty, CRC-IL

Sam Hasler said...

If possible send me the links to the articles you mention by e-mail.