There are many considerations a court has to make when it comes to child custody cases. Though, ultimately, the court must put the best interests of the child first when it comes to dictating who should be given parenting or visitation rights. There are numerous factors that come into play when helping the court to define the best interests of a specific child. For instance, one issue that the courts of New York might consider may be the financial stability of the parents in question. Alternatively, if the child in question within the case is old enough to make informed decisions about his or her own future, the wishes and requests of that child may be taken into consideration.
It’s worth noting that a child who is already suffering from the discomfort and trauma of a broken home can often benefit from avoiding any further disruption in his or her life. This was the concern of the New York Court of Appeals in the case Lincoln v. Lincoln that established how to take testimony of children in divorce and child custody cases. As such, it can be a good idea to consider solutions for obtaining information about the child’s wishes regarding custody, in a private format. No child would feel comfortable having to publicly share information about his or her relationship with his parents, or choose between them while either party watches. As such, “In Camera” testimony and interviews can be conducted to help provide a less harrowing experience for a child of divorce.
Importantly, the phrase “In Camera” as described by “Legal-dictionary.com” is a Latin term that refers to conditions that are “in private”. In other words, the conversation or testimony conducted “In Camera” might not involve a videotape of any kind, despite what the name might suggest to some. Rather, if a party asks for the court to have an In-Camera testimony retrieved from a child, a conversation will be held with that child with neither parent, nor their attorneys present. The goal of this process is to provide the child with as much security and comfort as possible when it comes to expressing his or her wishes about visitation, custody, and other essential matters. Usually only the Judge and the Attorney for the Child(ren) are present though child custody attorneys for the parties might submit questions that they wish the Judge to ask the child.
Most courts agree that an interview conducted in private helps to limit the psychological danger a child is exposed to when partaking in a divorce or child custody case. Often, a child who is not being watched by his parents will also be far more informative, and willing to talk, than those who feel as though they are being scrutinized. The Lincoln Court concluded that the only way they could avoid placing unjust emotional burdens on the children within the case, while still enabling them to have their say, was to use in-camera procedures.
Another example case that outlines the use of In-Camera testimony is Lincoln vs Lincoln. In this case, it was outlined that children may sometimes feel uncomfortable or frightened about the concept of having to speak in front of others during a civil or criminal litigation. Particularly during divorce proceedings, the likelihood is that the child will need to testify regarding their personal preferences about where they’d prefer to reside, or about facts that may be relevant to the divorce case. In Camera processes allow children the freedom to talk candidly about their concerns without the threat of judgement, or the risk of causing more problems within an already fragile family dynamic.
An In-Camera testimony or interview is often conducted by a magistrate or judge that has been assigned to a particular case. In an instance wherein an Attorney for the Child has been appointed to assist with a case, this individual may also be present during the interview. The determination for this matter is left to the discretion of the court. While a court reporter may be present to transcribe the interview, the transcript is generally not available to either party or his or her counsel, so as to help provide confidentiality for the child in question.
Different judges and magistrates may have their own style when it comes to conducting In Camera interviews. However, most will make an effort to place the child at ease however possible. This often means that the judge will speak to the child in a conversational and informal manner in order to limit the child’s discomfort. Generally, the judge will ask gentle and subtle questions to better understand the needs of the child in relation to their best interests, and what must be done to keep the child safe.
An In Camera interview may be requested by either party involved in a divorce case, or it may be something that is asked for by the court judge. Many divorce court judges in New York will not want to have children being brought into the court room and placed “in the middle” of litigation that is taking place between two parents, as generally exposure to this kind of emotional trauma is not in the best interests of the child. But, in the court’s discretion or if a motion by any of the parties for an In Camera interview is granted by the court, a Lincoln Hearing is permissible.
The Judge in question for the case will be required to determine whether the child is mature enough to express opinions from an informed perspective. If a child is “too young”, then his or her wishes regarding custody and visitation agreements may be given less weight.
To learn more about the complications of child custody arrangements, or discuss the unique attributes of your own case further, please feel free to contact me, Mr. Darren Shapiro, to schedule your free initial half-hour consultation. You can either complete our online form, or call on 516-333-6555.