The 10 Year Old Witness; An Adventure in Anxiety

My New Jersey colleague Eric Solotoff just published in our sister blog about a recent Appellate Division case from that state where a relocation case was remanded for lack of a record related to the views of a 10 year old child.

To be fair, this wasn’t just any fifth grader. Sam W. is the only child of two parents who divorced in 2017 while living in Kearny NJ, just outside Newark. They agreed on shared physical custody and father stayed in what was the marital home. Mom has changed jobs and residences a bit but in 2020 she re-married a man. They have three other children ages 6, 2 and 1. When mom’s apartment flooded in September 2021 she decided to buy a home in Franklin NJ, roughly 60 miles away.  She approached her former husband about taking primary custody of Sam and, as one might suspect, that did not go well. Father filed and secured an order to prevent any move until the matter was tried. That was done over 3 days in June 2022. The case was not decided until December 2022 at which point the relocation was denied. Mother appealed and the Appellate division ruled on March 1 of this year, remanding the case because Sam hadn’t testified.

Needless to say, Sam has a big stake in this game. He appears to be thriving where he currently resides near both parents. Franklin, NJ, appears to be about 60-75 minutes by car from Kearny but we all know when estimating any travel time in metro New York, those estimates can be wildly incorrect given the day and hour of transit.

But Sam is (more accurately was) 10. That’s an age when not many children can offer much perspective on the benefits or detriments of a change in their custody schedule arising out of relocation. It just so happens that in Pennsylvania there are 10 statutory factors which are to be assessed in relocation. 23 Pa.C.S. 5337. The child’s preference is admittedly one of those factors but the other nine take on some fairly heady subjects; e.g. motivation of the parents; available resources in the competing habitats; net benefits to the child and parents relocating; history of abuse; feasibility and impact of changes in schedule the relocation might produce. Even the most precocious ten-year-old is not going to be able to provide much assistance to a court in evaluating any factor aside from “child preference.” And even then, one has to ask, how does a ten-year-old who has spent his first decade of life in Kearny articulate his feelings about Franklin?

So, this case is remanded for another hearing after 30 months and the parties are headed back to Jersey City for the interview of now 12-year-old Sam. This case may have been remanded for that very reason because kids grow up a lot between 10 and 12 and Sam has now lived with this conflict for almost three years. Alas, that’s not a good outcome for either the courts, the parents or the child. Ask any psychologist and they are likely to tell you that custody battles often scar children because they have to navigate months and years of conflict and indecision.

Ironically, the opinion in this case informs us there was a better path and no one followed it. Early on the parties agreed to engage a neutral expert to interview Sam. It appears this was done but no one offered the expert at trial. That might be because both parties did not like the expert or found his/her involvement useful. That’s too bad for several reasons.

1. When a kid goes to court to testify the younger they are the more overwhelming the experience. Big buildings, people in robes; others with guns; parents squabbling over who will bring the kid and then looking anxiously when the child does arrive. “What will Sam say?”
2. In states like Pennsylvania, the interview is to be stenographically recorded and counsel for the parties are supposed to be present. So, the child is surrounded by a crowd of strangers asking questions. What’s the first thing Officer Dotts told me in second grade assembly in 1962? “Do NOT talk to strangers.”  Name:  Sam     Rank 5th grade   Serial No.  10   What do you know about Franklin NJ?   It’s off a highway. Mom has a house there.
3. I have seen judges who are rock stars at interviewing kids. They take their time and ask about sports the kid plays, books they read and then they slowly circle (not unlike sharks) with questions about what they most like to do with dad, mom, step siblings, grandparents. It can be good, if you aren’t paying hundreds of dollars an hour while sitting with your ex in the courtroom, sweating.
4. I have seen judges who are a disaster with children. Judges who hate custody work to begin with, have no affinity for children, think the kid should sit in the court’s witness box even though no one can see him and he’s freaking out as he is watching his parents and their lawyers sit 15 feet away, ashen faced. No one trains a judge to do child interviews and most end up being pretty empty events.
5. Want to experience this first hand. The hour long film published by the Pennsylvania Bar Association and linked below is excellent but part of its mission was to train judges how to do kid interviews. The judges you will see are the cream of the interview crop. You and your child should be so lucky. 
6. Realize that kids are intuitively smart enough to realize that no good comes of expressing a preference between two parents unless things are pretty bad in one of the homes. Experience has taught this writer that 8 of 10 child interviews with kids under 14 come back as: “I’m fine with how things are.” Realize the choice here is Kearny or Franklin NJ; not Passaic vs. Disneyworld.
7. There are manipulation issues which judges often miss. Kids in the 10-12 age will often stand up for and defend a parent who has problems with relationships, employment or controlled substances. They will feel sorry for that parent and often feel disposed to rescue the downtrodden parent. Kids 15 and up tend to run in the opposite direction. If mom lives in a house with a pool while dad is in a one bedroom apartment, the pool wins almost every time.

What should have happened in this New Jersey case? The trial judge should have insisted on a report from the neutral expert who did interview Sam and who is trained to assess these kinds of issues. The trial judge should then have asked the expert to opine if an in person judicial interview with Sam with all of the required baggage (parents/lawyers/court reporters/sheriffs) could provide meaningful input to the relocation factors. If the expert says yes, then “Damn the impediments, full speed ahead.” But judicial interviews of children need more nuance than punching your ticket on the PATH (a rail line in North Jersey). At age 12, Sam may be a far more interesting interview candidate. Of course, if he has a girlfriend in Kearny by now, mom’s case is probably sunk a second time. At ten, there was hope.

In a technical sense the Appellate Division ruling appears to properly follow what the N.J. Supreme Court’s rules require. But the very same law, in its statutory form discusses the capacity of the child to offer an “intelligent decision.” N.J.S.A. 9:2-4(c). Respectfully, as we noted, it’s a rare ten year old who can contribute to relocation discussions and for the reasons we note, many children who might have views prefer to play their cards tight to the vest. Until ages 12-14 child interviews tend to offer little more than anxiety for the parties and the children. In this case, the remand includes instructions to allow “new” evidence to be presented. Thus, the result is that a relocation initiated in September 2021, looks like it will go at least three years without a final decision.

Eric’s analysis of the case:

C.G. v. D.W.  Superior Court of NJ, Appellate Division  A-1543-22 (3/1/24) (nonprecedential)

Story originally seen here