a commissioner talks about interviewing children: transcript from october 17th family law colloquium...

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A COMMISSIONER TALKS ABOUT INTERVIEWING CHILDREN: TRANSCRIPT FROM OCTOBER 17TH FAMILY LAW COLLOQUIUM LOS ANGELES I would like to talk to you a little bit about interviewing children, based on the experience that I've gained in the past three years. Reasonable men can and do argue about the effect of private interviews with the judge on the child's candidness and upon whether or not the child would be open with a judge in secret as opposed to talking to the judge in the pres- ence of the attorneys. Children are never interviewed by me in open court. They are always interviewed in chambers with the presence of the court reporter or outside the presence of the court reporter. I know of no data to support the conclusion that children's testimony is more candid with or without the presence of the lawyers. In Anglo-Saxon history we became very sus- picious of secret testimony. I've come to believe that an interview in private can be seriously det- rimental to the child for the following reasons: We have been told by the behaviorists that children, because of their position, have a sense of helplessness and powerlessness and by rea- son of that, begin to develop a feeling of omnip- otence. They feel that everything that happens is caused by them and from that we get children feeling that the divorce is their fault and that the family fighting is their fault, especially when the family fighting is about visitation. When a child is the only member of the fam- ily that is afforded the privilege of going into the judge's chambers and then is afforded the privilege of talking to the judge in secret, I think there is a real danger that the child may feel responsible for the decision that the court makes and might carry that sense of responsibility for the decision, throughout life. I have some techniques that I hope insulates the child from those feelings. Whether it is suc- cessful or not I have no way of knowing. It has been my practice to first call the law- yers in with the child. I set up my interview so that the lawyers sit behind the child. I always come out from behind my desk, without my robe and usually without my coat. I put the chil- dren in the chairs facing me, very close to me. I sit on chairs that are the same level as theirs. If I have one very young child sometimes I'll sit that child upon my desk to give her a little higher position in the interview than any of the rest of us and then I tell them my rules, and they can choose the rules they want. I say that this is my job, it is what I do here every day. It is kind of a funny way to make a living, but when mommies and daddies dis- agree, that is what 1 have to do. I talk to lots of children and I have to make these decisions every day. What happens to you today is my fault. Not your fault, not your mother's fault, not your daddy's fault. No matter what anybody has told you, I am the guy who makes the decision. The first rule is, you don't have to talk to me, you can walk out of here. Anyone of you who says you don't want to talk to me, can walk out of here and I won't let anybody ask you any questions. Five to ten per cent take that choice and walk out. The next rule is, you can talk to me while the lawyers are here. The rules say they have to tell your mom and dad what happens in here. The next rule is, you can talk to me in secret. Secrets are very hard to keep. I don't think it is good to keep secrets. Mom would wonder what you said and dad would ask you what you said. If you want to tell me a secret about some- thing really terrible you can do that, but re- member, I don't have to do what you say. I will listen to what you say. In three years I have had three or four chil- dren want to talk to me in secret, adolescents, and mostly their reasons have been good. In order to conceal what you told me I will go out in court while you are there and what I will tell them is, you love both your parents equally and you want to leave it up to me. Now I have'to hear all the testimony, to con- ceal that those children have given me the deci- sion making factor, so it doesn't save any time, it costs time. After I finish giving them the rules, if there's more than one youngster I let them have a fami- ly conferecce and ask them if they have had 33 CONCILIATION COURTS REVIEW / VOLUME 17, NUMBER 1 / JUNE 1979

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Page 1: A COMMISSIONER TALKS ABOUT INTERVIEWING CHILDREN: TRANSCRIPT FROM OCTOBER 17TH FAMILY LAW COLLOQUIUM LOS ANGELES

A COMMISSIONER TALKS ABOUT INTERVIEWING CHILDREN: TRANSCRIPT FROM OCTOBER 17TH FAMILY LAW COLLOQUIUM

LOS ANGELES

I would like to talk to you a little bit about interviewing children, based on the experience that I've gained in the past three years.

Reasonable men can and do argue about the effect of private interviews with the judge on the child's candidness and upon whether or not the child would be open with a judge in secret as opposed to talking to the judge in the pres- ence of the attorneys.

Children are never interviewed by me in open court. They are always interviewed in chambers with the presence of the court reporter or outside the presence of the court reporter.

I know of no data to support the conclusion that children's testimony is more candid with or without the presence of the lawyers.

In Anglo-Saxon history we became very sus- picious of secret testimony. I've come to believe that an interview in private can be seriously det- rimental to the child for the following reasons:

We have been told by the behaviorists that children, because of their position, have a sense of helplessness and powerlessness and by rea- son of that, begin to develop a feeling of omnip- otence. They feel that everything that happens is caused by them and from that we get children feeling that the divorce is their fault and that the family fighting is their fault, especially when the family fighting is about visitation.

When a child is the only member of the fam- ily that is afforded the privilege of going into the judge's chambers and then is afforded the privilege of talking to the judge in secret, I think there is a real danger that the child may feel responsible for the decision that the court makes and might carry that sense of responsibility for the decision, throughout life.

I have some techniques that I hope insulates the child from those feelings. Whether it is suc- cessful or not I have no way of knowing.

It has been my practice to first call the law- yers in with the child. I set up my interview so that the lawyers sit behind the child. I always come out from behind my desk, without my robe and usually without my coat. I put the chil- dren in the chairs facing me, very close to me. I sit on chairs that are the same level as theirs.

If I have one very young child sometimes I'll sit that child upon my desk to give her a little higher position in the interview than any of the rest of us and then I tell them my rules, and they can choose the rules they want.

I say that this is my job, it is what I do here every day. It is kind of a funny way to make a living, but when mommies and daddies dis- agree, that is what 1 have to do. I talk to lots of children and I have to make these decisions every day.

What happens to you today is my fault. Not your fault, not your mother's fault, not your daddy's fault. No matter what anybody has told you, I am the guy who makes the decision.

The first rule is, you don't have to talk to me, you can walk out of here. Anyone of you who says you don't want to talk to me, can walk out of here and I won't let anybody ask you any questions.

Five to ten per cent take that choice and walk out.

The next rule is, you can talk to me while the lawyers are here. The rules say they have to tell your mom and dad what happens in here.

The next rule is, you can talk to me in secret. Secrets are very hard to keep. I don't think it is good to keep secrets. Mom would wonder what you said and dad would ask you what you said. If you want to tell me a secret about some- thing really terrible you can do that, but re- member, I don't have to do what you say. I will listen to what you say.

In three years I have had three or four chil- dren want to talk to me in secret, adolescents, and mostly their reasons have been good.

In order to conceal what you told me I will go out in court while you are there and what I will tell them is, you love both your parents equally and you want to leave it up to me.

Now I have'to hear all the testimony, to con- ceal that those children have given me the deci- sion making factor, so it doesn't save any time, it costs time.

After I finish giving them the rules, if there's more than one youngster I let them have a fami- ly conferecce and ask them if they have had

33 CONCILIATION COURTS REVIEW / VOLUME 17, NUMBER 1 / JUNE 1979

Page 2: A COMMISSIONER TALKS ABOUT INTERVIEWING CHILDREN: TRANSCRIPT FROM OCTOBER 17TH FAMILY LAW COLLOQUIUM LOS ANGELES

family conferences. I learn a little bit about parenting that way. I take them to another room, let them decide if they want to talk to me to- gether or singly or whether they want to talk to me at all.

If they come out of the room and say, I want to live with daddy, they flunk. They don't qualify as a witness. They haven't been listening and they don't understand what I say. I talk to them a little bit and say to the lawyers, that this wit- ness doesn't qualify.

After they come back out I say that what's going to happen is that I am going to ask you a lot of questions. When I get al l through if there's anything you want to tell me you can tell me. Then I go through all the parenting questions.

I ask them about who buys the clothes and who takes them shopping and who comes when they fall down, questions to determine about parenting. Somewhere along the line I say, Let's play a game. Can you play a game with me? Okay, you know what I have to decide today, I have to decide whether you are going to go home with mom or daddy. Let's pretend I send you home with momma. How often would you want to visit with daddy? Let's pretend 1 sent you home with daddy; how often would you want to visit with mommy?

If they say, you send me home with daddy and I want to see mommy every day or they say, if you send me home with mommy I want to see daddy on the weekend4 don't need to ask whom they want to live with. I do everything I can to preclude them from telling me whom they want to live with.

Most of the interviews, when I have com- pleted my questioning, they say they don't have any questions to ask me. I f it's been a good interview and it appears appropriate to me, then I ask them if it's all right if the lawyers ask them a few questions and let them turn around.

Generally the lawyers have no questions to ask them because I have asked all the questions lawyers ask-I have heard a lot of questions law- yers ask. I try to ask all the questions lawyers

want to ask. Lawyers tell me things they want to ask specially.

1 have seen lawyers have tears in their eyes during interviews. Children very quickly forget the lawyers are there. Once in a while there will be a kid looking around and I have to worry what those implications are, but generally, shortly in the interview, they forget the lawyers a re there.

Some cases settle after those interviews. Then 1 have to worry about what the children are going to think if the matter settles, but if I have been successful and prevented them from telling me whom they want to live with, I feel comfortable that I haven't made them feel re- sponsible for my decision.

1 believe that since the first child custody case which appears in the First Kings, Chapter Three, Verse Sixteen and Twenty-three, where the judge made an offer of joint custody through the use of a sword, that we've come to depend too much on children to make our decision. To depend on children to make our decision is to abrogate our responsibility as adults. We should avoid the unfairness of secret testimony, which is universally regarded as unfair. I don't know why in this particular kind of case of all others, lawyers are so willing to flirt with star chamber procedures. It is the most important case that we hear and there is a very important learning process that goes on while that child is being interviewed. Lawyers are a very important part of this conflict that's going on and the lawyers can relate back to the parents-to their clients, what's happened and their clients learn some- thing from that interview.

It is such a valuable interview it shouldn't be wasted by having been done outside the presence of the parties that are involved, be- cause a judge-can't always remember what he said. I f you have to face a transcript sometime and realize that you didn't say what you thought you said, you'll understand what I mean.

I recommend that in the future we give very careful consideration to all the possible conse- quences that flow from talking to children at the time of trial.

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