In this article, we explain child interviews in Illinois child custody cases, including:
There is no doubt that court hearings and trials are particularly stressful for children. Parents themselves should do all they can to protect their children from getting involved in the court proceedings. Fortunately, most kids do not have to testify in court to make their custody wishes known.
In an effort to protect children from the negative impacts of custody disputes and stresses related to testifying, judges try to avoid putting children on the witness stand (except in emergencies). Alternatively, a judge can speak directly with the child during an interview in the judge’s chambers. This preferred way of taking the testimony in chambers is called an in camera interview (In camera is a Latin term meaning "in chambers". This refers to a hearing or discussions with the judge in the privacy of his chambers ).
A court employee will bring the child to the judge's chambers. The judge will sit at her desk usually without her robe to cast a more informal setting for the child. Once the child is there, the judge and the child talk. The judge will ask the child questions in the presence of each parent’s attorney. Both parties’ counsel shall be present unless the parties otherwise agree.
A court reporter will attend the in-chambers interview to prepare an accurate transcription of everything that is said. The recorded transcript, instead of a child’s live testimony, may be used during custody hearings or trial. Finally, a court that finds it necessary to protect the child’s welfare may seal the record of any interview, report, investigation, or testimony in a custody proceeding and order that the record be kept secret.
Judges are careful when using a child's testimony because some parents may try to manipulate the child in order to gain an advantage in a custody proceeding. Professionals, like judges and therapists, are trained to look for signs that a child is being coerced to testify a certain way. Thus, a child’s age and ability to make independent decisions are critical when deciding how much weight to give a child’s wishes.
Keep in mind that the Court is not required to interview the child and if the Court does interview the child, the parent is not in control of what questions are asked during the interview. Many judges will accept written questions from the parties’ attorneys prior to the in-camera interview but the judge ultimately decides what is discussed during the interview.
The Court is concerned with what is in the child’s best interests. Pursuant to Sections 602.5 and 602.7 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602.5 and 602.7), the Court must consider several factors when determining what is in the child’s best interests and “wishes of the child” is just one of the many factors to be considered. Involving a minor child in litigation between adults is not something to take lightly. My advice would speak to an experienced family attorney before agreeing to or requesting an in-camera interview of your child.
Depending upon their age and developmental stage, a child may think that their testimony will determine which parent they prefer to live with. As a result, children sometimes feel betrayed or angry when the outcome of a custody litigation does not coincide with their stated wishes. It should be made clear to the child at the outset of the interview that the judge will make the custody decision by weighing up all the evidence and that the decision does not rest solely with the child. The judge looks at many factors to determine “the best interests of the child.”