I started reading C.G. v. D.W., an unreported (non-precedential) Appellate Division case released on March 1, 2024, sucked in by the opening sentence about the court’s denial of an intra-state move. As there aren’t that many cases on that issue since the A.J. v. R.J. case I blogged about in 2019.

But the decision took a left turn because it turned, not on the merits of the intrastate move, but rather, on the failure to address the child’s preference, which is one of the factors, and the failure to interview the child.

Because the decision is basically limited to that issue, the facts are not all that important other than as follows. The parties had on child in 2012, married in 2013, separated in 2016 and divorced in 2017. The parties essentially shared residential custody. The child attend a school reasonably close to the parties where he had an IEP for English and math and to provide speech and occupational therapy. Mom, who remarried and had 3 children with her new husband, sought to move 60 miles away, in the Fall of 2021. Dad moved to block the move and a hearing was ordered.

The parties agreed to retain a joint custody expert but either never did and as such. there was no expert testimony at the trial. Additionally, prior to the commencement of testimony, mom requested that the court interview the child. The court said that it would do so at some point in time and invited the parties to submit proposed questions. It doesn’t appear that they did so and the interview never took place.

The trial court denied the move and mom appealed. As noted in the title, the Appellate Division vacated the decision and remanded for the interview to take place.

In their analysis, the Appellate Division noted the need for the court to review the matter under the prism of the statutory factors for custody, one of them being: “…the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.”

The Appellate Division then noted the Court Rule (R. 5:8-6) regarding child interviews which notes in the plain language that it is discretionary but “If the court elects not to conduct an interview, it shall place its reasons on the record.” In this case, despite the indication that the interview would occur at some point, it didn’t, and the court also did not place it’s reasons for not having the interview on the record.

The court further noted that if the court can glean the child’s preference from another source, such as expert testimony,, that could be a reason for the court to not interview a child. The court noted that:

“In the absence of expert testimony, it is difficult, if not impossible, to analyze the “preference of the child” factor.

The court then cited the famous quote from Mackowski v. Mackowski as follows:

“Too often, judges deciding issues in the Family Part must rely solely on the “voices” of the attorneys who prepare the competing affidavits and certifications on the pretense that the litigant is speaking. [The judge’s interview] insures that where custody is a “genuine and substantial” issue, the judge will not be insulated from seeing and hearing the subject of the dispute. The “voice” seen and heard will not be that of the lawyer or litigant but that of the child who is the subject of the dispute. The value of a properly conducted interview enabling the judge to see and hear the child first-hand outweighs the possibility of harm that may befall a child by being subjected to the interview process. On balance, it is not the interview that is ultimately harmful, but the custody dispute between the parties that potentially wre[a]ks havoc with the child.

The decision noted that “neither party accepted the court’s invitation to submit proposed questions, nor was the child produced for an interview” but that was clearly not enough to meet the mandate of court rule. The Appellate Division then threw mom’s lawyer under the bus stating:

“No doubt the better practice would have been for plaintiff’s counsel to more actively pursue the scheduling of the child interview. Nevertheless, this is ultimately the court’s responsibility, particularly when it advised the parties of its intent to interview the child [sic.]

Now based upon the substantive facts, who knows if the preference would matter. That said, the case shows what can happen when all of the formalities are not followed.

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