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Can the Judge Interview my Child in a Custody Dispute?

Can the judge talk to my child in my custody case? Will I know what my child told the judge? Can my child request to speak to the judge? These are commons questions this article will try to answer.

In a disputed child custody action in Georgia, a judge may choose to interview the child central to the dispute in chambers. The general rule applicable to the judge interviewing a child in a custody case is in Georgia Superior Court Rule 24.5(B) which states: “When custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court. At any such consultation, attorneys for both parties may be in attendance but shall not interrogate such child/children except by express permission from the court. Upon request, the proceedings in chambers shall be recorded.”

These interviews are conducted so that the judge may gain understanding of the child’s perspective and in turn, make the most informed decision possible regarding custody. Also, a child’s custody preference can be of importance especially if the child is at least 14 years of age and elects to live with a particular parent. Of course, a judge may choose not to speak to a child (as the child may be too young or the judge doesn’t believe it’s appropriate under the circumstances). Although the interview may be conducted in the presence of the parties and their respective attorneys, the interview with the child nay be held privately.

However, importantly, just because an interview is held privately in this context does not mean that the substance of the interview will remain confidential. Parties to a custody proceeding are entitled to know what evidence the trial court relies on to make its decision. Therefore, if a judge relies on a privately held interview in making a custody determination, such evidence must be shared with the parties. This is illustrated in the 2020 Georgia Court of Appeals case, Spruell v. Spruell, 2020 WL 5587212.

In Spruell, the trial court judge conducted a private interview with the child where only the court reporter was present. The judge then relied on that private interview in making a custody determination. One of the parties sought to obtain the transcript of the interview, but the recording of such interview could not be found, and therefore, no transcript could be produced. Accordingly, the Georgia Court of Appeals determined that because the evidence was unavailable to the parties, the trial court erred in using the interview to make its custody determination. The Court vacated the final custody order and remanded the case to the trial court with direction to make a custody determination without utilizing evidence—the private interview—that was unavailable to the parties. After all, the appellate courts of Georgia have long held that trial courts, in reaching judgments on child custody cannot rely on evidence that was not available to all parties or their counsel.

Custody disputes can be overwhelming, particularly when the court decides to interview the child or children. Our firm has years of experience handling complex child custody matters. If you need help or advice with a child custody matter, please don’t hesitate to call Naggiar & Sarif Family Law to speak with one of our top rated divorce and child custody attorneys.