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Interviewing children incident to divorce or any other legal proceeding is, to put it bluntly, a minefield. There are many issues to be aware of before embarking upon what many may view as a rather mundane task. Let’s face it, most of us have children and occasionally speak to them. How difficult can it be, right? Wrong. When interviewing children incident to divorce, abuse allegations, or other related matters, whether it be by a judge or forensic expert, the interviewer must be aware of both the law and the psychological impact of the interview process, environment, questions and responses to answers. This article will outline the law as it pertains to interviewing children incident to divorce, and then address the psychological issues involved when interviewing children incident to divorce and related legal matters such as abuse allegations and termination of legal rights. The article will provide an outline of what to do and what not to do.
The Law
When determining custody of a child, the courts of New Jersey must consider “the preference of the child” as one of 14 statutory factors that must be examined prior to the court rendering a custody decision.[i] Although the court must consider the child’s preference when determining custody, it has discretion to determine whether an interview with the child is necessary, or whether the best interest of the child is served in the absence of such an interview. Specifically, the Rules of Court provide:
As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court. Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody. Any judgment or order pursuant to this hearing shall be treated as a final judgment or order for custody.[ii]
The court did not always have discretion when determining whether to conduct an interview with a child. Prior to an amendment of the Court Rules in 2002, the court’s interview of a child was mandatory, if requested by a litigant, for any child age seven or older, before the court could render a custody determination. Trial courts were consistently reversed for failing to comply with the mandatory interview.[iii]
The impetus for the change from mandatory to discretionary child interviews is encompassed in the concurring opinion of Judge Howard Kestin in the 1998 case of Mackowski wherein the judge criticized the mandatory requirement of an interview, emphasizing the emotional damage that can be caused to the child as a result thereof.[iv] Judge Kestin further cautioned, “Even the most talented, sensitive and conscientious judges are poorly suited to conduct child interviews in custody cases. It is entirely too facile to suggest that a bit of training can equip any of them with the resources that years of professional training and experience confer on those relatively few mental health practitioners who have special aptitude for the assignment.”[v]
Despite the newly granted discretion provided to the court pursuant to the 2002 amendment of Rule 5:8-6, the higher courts of New Jersey continue to reverse custody determinations due to the lower court’s failure to conduct an interview with the child. [vi]
Improper child interviewing risks tainting the child’s statements. To protect against taint, the New Jersey Legislature proposed a bill that, if enacted, would require mental health professionals to videotape all sessions with any child who is the subject of an allegation of abuse or neglect.[vii] The statement to the bill explains that it will protect the interests of psychologists and children, should issues or questions arise regarding the therapy provided during the sessions. At the time this article was completed, the bill had not passed into law.[viii]
Psychology
The potential pitfalls can, however, be reduced by improved interviewing techniques developed primarily for sex abuse cases. The initial polarization of leading academic researchers (whose work emphasized the fallibility of children’s memories) versus clinicians (whose work emphasized the trauma of accurately disclosing true abuse memories[ix]), is gradually being transcended in favor of a shared recognition of the interviewing techniques needed to elicit accurate reports about alleged sexual abuse.[x] As a result, protocols have been developed codifying best interview practices (Olafson, 2003).[xi] Two widely institutionalized ones are Finding Words[xii] and the National Institute of Child Health and Development (NICHD) Investigative Interview Protocol.[xiii]
Official Investigative Interview Protocols
Finding Words was developed in the United States by CornerHouse, a child advocacy center, in partnership with the National Center for Prosecution of Child Abuse. It is used in many states, including New Jersey. It organizes interview questions into stages (rapport, anatomy identification, touch inquiry, abuse scenario, closure), leaving particular questions to the interviewer’s discretion.
The NICHD protocol was developed in the United States and Israel. It too provides an interview sequence (introduction, rapport, episodic memory training, transition to substantive issues, investigation, eliciting undisclosed information, questioning prior disclosures, closing[xiv]). It is more structured than Finding Words, providing the interviewer with specific questions and a decision tree to follow in responses to the child’s answers. It has been the mandatory investigative protocol for all child sexual and physical abuse investigations in Israel for more than 10 years.[xv]
Finding Words provides a five day intensive training seminar.[xvi] Research on the use of the NICHD protocol finds that compliance with their recommended practices is higher with continuous training, including workshops, supervision, and feedback.[xvii] This may not be true of Finding Words because it is a simpler protocol. The interviewing practices presented here are a brief summary and integration of the practices contained in Finding Words[xviii] and NICHD protocols.
Best Interview Practices
Interviewing Don’ts
Best interview practices avoid pressure and suggestion coming from the interviewer’s demeanor and/or statements. The interviewer’s demeanor should be friendly while avoiding positive reinforcement (e.g., smiling, nodding, vocalizing approval) for abuse-consistent answers and negative reinforcement (e.g., frowning, interrupting, vocalizing disbelief or disapproval) for abuse-inconsistent answers. Questions should avoid suggestions produced by incorporating information from sources other than the child.
Question Types
Questions types range from unstructured to structured. Unstructured, or open, questions best reduce the risk of taint. The most open questions ask for free recall (e.g., “Tell me about that”), followed by “who, what, where, when, and why” questions, and then –by directed or focused questions that clarify or elaborate the child’s prior statements (e.g., “You mentioned you were at the shop. Where exactly were you?”). Direct questions should be followed by a return to open ones (e.g., “Tell me about that shop”). If the child’s answer leaves details missing or unclear, the interviewer should continue using questions that are as minimally structured as possible and returning to open ones (e.g., “ Where in the shop were you? Can you tell me more about that?”).[xix] This sequence of focused questions followed by open ones should also be used to elicit information not mentioned by the child (e.g., “I heard that you talked to [X]. Tell me what you talked about”).[xx]
More structured questions pose a greater risk of taint and should only be used when unstructured ones have been unproductive. The safest structured questions provide multiple alternatives. In New Jersey interviewers using Finding Words often pose the alternatives in one question (e.g., “You said he touched you in your butt. Did it happen when he was wiping you or giving you a bath or putting cream on you or something else?”). The NICHD protocol splits the alternatives into several questions. However, this practice tends to require yes/no questions. These pose the greatest risk of tainting the child’s answers, especially if the child is very young and/or compliant because such children may be more likely to try to guess an answer that would please the interviewer. Furthermore, continuing to question a child who has answered a question may pressure or confuse the child (e.g., “Did he touch you over your clothes? [Child answers.] Tell me about that. Did he touch you under your clothes? [Child answers.] Tell me about that”).[xxi] Pairing alternatives with the open request to tell more may reduce the risk of taint.
Interviewing Dos
Opening Communication. Finding Words and the NICHD protocol begin with preliminary conversations that introduce the interviewer, communicate the purpose of the interview, give the child permission to express lack of understanding or knowledge and to correct the interviewer, and establish rapport. Both protocols direct interviewers to express interest in the child’s life, discuss topic(s) the child offers, and continue until the child is comfortable conversing spontaneously. Finding Words is particularly strong in its attention to the non-verbal characteristics of communication. It advises interviewers to sit at the same level as the child, remove symbols of authority (e.g., a badge), and appear friendly. Further, it emphasizes the need to observe the child’s behavior and emotion in addition to the child’s statements.
Assessing Truthfulness. During the preliminary conversations, the NICHD protocol assesses truthfulness by misidentifying a physical characteristic of some object and asking the child if the misidentification is true or not (e.g., “If I say that my shoes are red…is that true or not true?” [Child answers] “That would not be true, because my shoes are really [black…]”).[xxii] Finding Words does not use such a ‘truth test’ because they equates lies with mistakes. Furthermore, they fails to assess the child’s moral understanding of and commitment to truthfulness.
Determining Testimonial Competency. During the preliminary conversations, Finding Words advises interviewers to observe the child’s developmental level, general vocabulary and narrative ability. It is particularly valuable in its recommendations for the use of drawings, anatomical diagrams, and dolls for rapport building and as communication and memory aids.
The NICHD protocol is particularly valuable in its instructions to assess the child’s ability to report events. Using a full description obtained from an adult for an accuracy check, it directs interviewers to ask the child about a special event, a past (yesterday’s) event, or if those are insufficiently detailed an event that occurred the day of the interview. Interviewers are directed to question the context leading up to the event, the sequence of details within the event, and the event’s aftermath, paying attention to the child’s use of time concepts. These conversations also train the child to report events as completely as possible.
Transition to Allegations. Finding Words transitions from discussing neutral topics to discussing abuse allegations by assessing the child’s experience with types of touches, inquiring about good and bad or liked and disliked touches. This practice assumes that all sexual abuse feels bad and is disliked, which may not be the case. The NICHD protocol transitions by discussing the purpose of the interview in more detail, referencing the interviewer’s knowledge of a problematic event, and using an open question to ask for more detailed information (e.g., “My job is to talk to kids about things that may have happened to them….Tell me why you are here” or “Tell me why you think your [dad] brought you”).[xxiii]
Investigating Allegations. The NICHD protocol and Finding Words both relate best interview practices to the child’s willingness to disclose. NICHD is more detailed. With the child who has made a prior disclosure, NICHD directs interviewers to remind the child of the prior statement and request a free recall narrative (e.g., “You told me that [child’s statement]. Tell me about that.”).[xxiv] With the child who has not made a prior disclosure, the interviewer should refer to the source of the suspicion and, without mentioning an alleged perpetrator or giving details, request a free recall narrative (e.g., “I heard you talked to [X] at [time, place]. Tell me what you talked about.”)[xxv] In both cases, the free narrative should be followed by a sequence moving from open to focused questions, in the same way that the interviewer proceeded when probing non-abuse related events. After the child is finished, the interviewer can elicit more details, first by asking, “Is there anything else?” and then by clarifying any statements that are ambiguous. Finally, interviewers can repeat statements reported by others (e.g., “I heard you said [and/or] someone saw…”)[xxvi] and ask for more information or clarify any confusion using as open a question as possible.
Finding Words teaches interviewers to understand the process of disclosure, recognize resistance, and understand the reasons for it. Research on applying the NICHD protocol shows that interviewers faced with a resistant child may be sorely tempted to narrow the focus of their questions and repeat them,, which risks leading and pressuring the child.[xxvii] This dynamic may have been operative in the Michaels’ case[xxviii] with some children. The NICHD protocol recommends anticipating this problem and formulating questions in advance of the interview, or offering to take a break when the child becomes resistant and using the break as an opportunity to formulate those questions. The interviewer should use questions with a more narrow focus, but refrain from mentioning the name of the accused or the details of the allegation (e.g., “Did somebody hit you?”). If the child still resists, interviewers should refer to the situation in which the allegation arose (e.g., “Your teacher told me that you touched another children’s wee-pee…, and I want to find out if something may have happened to you” followed, if necessary by ”Did somebody touch your wee-pee…? Tell me everything about that.”.[xxix]
NICHD and Finding Words agree that interviewers should not persist if the child continues to resist. Trying to overcome continued resistance is likely to backfire. It is likely to make children who are reluctant to disclose even more resistant, less informative, and more confused.[xxx] When faced with this situation, the interviewer should abort the interview
Closing. Finding Words recommends ending the interview by discussing safety issues and being respectful.[xxxi] The NICHD protocol advises interviewers to thank the child, give the child the opportunity to ask questions, explain what will happen next if appropriate, and discuss a neutral topic (e.g., Ask the child, “What are you going to do today after you leave here?”).[xxxii]
Interviewers must grapple with the forensically critical need to assess the child’s commitment to truthfulness versus the absence of scientifically based best practice recommendations about how to do so. An alternative to trying to assess the child’s conceptual knowledge (e.g., “What does it mean to tell the truth? To lie?”), could be to assess the child’s use of those concepts.Questions such as, “Do you know anyone who ever told a lie? Tell me about that. What was the lie? What happened to the child who told it?” address the child’s ability to use the concept. Questions such as, “What do you think should have happened to the child who lied?” and “Have you ever lied? Can you tell me about that? What happened to you because you told that lie?” could be used to elicit the child’s commitment to truthfulness in general. Questions such as, “What do you think would happen if you lied to me today? What do you think should happen?” could be used to elicit the child’s commitment to truthfulness in the forensic interview. Such questions should be asked after the interviewer has established rapport, and the child is speaking freely, and before discussion of the allegations. They should be asked one at a time, and paced to respond to the child’s answers. They replace a truth test with a truth inquiry, using the same open question format that represents best practice in other portions of the interview.
Resistance
Interviewers must balance the suggestibility risks of interviewing a resistant child versus the risks of leaving an abused child unprotected and an abuser unpunished by aborting an interview. An alternative would be to shift the focus from substantive issues to the child’s resistance. Interviewers could comment on the child’s reluctance to communicate and probe the reasons for it. Questions such as, “You don’t want to talk about this?” and “Why not?” use the same open question format that represents best practice in other portions of the interview. If the child gives a substantive answer, interviewers could try to address his or her concern honestly, in the hope that doing so will weaken the child’s resistance. If it does not, interviewers may have no choice but to abort the interview and refer the child to a mental health professional for evaluation.
Conclusion
In summary, we start with Judge Kestin’s sage words: “Even the most talented, sensitive and conscientious judges are poorly suited to conduct child interviews in custody cases. It is entirely too facile to suggest that a bit of training can equip any of them with the resources that years of professional training and experience confer on those relatively few mental health practitioners who have special aptitude for the assignment.”[xxxiii] Looking to mental health techniques developed primarily for sex abuse cases, however, family part judges can reduce or eliminate some of the inherent problems associated with interviewing children. The techniques include:
Of course, no singular approach to interviewing a child can provide a foolproof mechanism without the risk of taint or emotional harm to the child. However, by applying the Dos and Don’ts delineated above, one can better insure that the scale between benefit and harm to the child is tipped in favor of benefit, and that any risk of taint is kept at a minimum. Of course, before interviewing any child, the seminal question is not which method of interviewing to apply, but rather whether the interview itself is in the best interests of the child. If the answer is that an interview is in the child’s best interests, then the authors hope that this article offers meaningful guidance moving forward with the interview.
Madelyn S. Milchman, Ph.D.is a psychologist in private practice in Montclair, NJ. Her expertise is in the psychology of trauma, with subspecialties in childhood trauma, sexual abuse, traumatic memory, interviewing children, and personal injury.
Charles F. Vuotto, Jr., Esq. is the Editor-in-Chief of the New Jersey Family Lawyer, Past-Chair of the NJSBA Family Law Section and partner in the Matawan based law firm of Tonneman, Vuotto & Enis, LLC.
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[i] N.J.S.A. 9:2-4(c).
[ii] Rule 5:8-6.
[iii] Mackowski v. Mackowski, 317 N.J. Super. 8 (1998); P.T. v. M.S., 325 N.J.Super. 193 (App. Div. 1999).
[iv] Mackowski, 317 N.J. Super. at 15 (Kestin, J.A.D., concurring).
[v] Id.
Published Cases
Peregoy v. Peregoy, 358 N.J. Super. 179, 206 (App. Div. 2003) (reversing a trial court’s custody determination due, in part, to the court’s failure to either conduct an interview with the nine year old child or place findings on the record as to why such an interview was not necessary);
New Jersey Division of Youth and Family Services v. L.A., 357 N.J.Super. 155, 168 (App. Div. 2003) (reversing and remanding in a parental termination case due to the trial court’s failure to conduct an interview with a thirteen year old child).
Unpublished Cases
Jannarone v. Jannarone, N. J. Super. (App. Div. 2011) (reversing and remanding a trial court’s modification of a parenting time schedule, due to the trial court’s failure to interview the child and consider her wishes, stating the ‘value of a properly conducted interview’ “of a sixteen-year-old child” ‘outweighs the possibility of harm’ “that could result to the children from the interview” (citing Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998)).
Drakeford v. Rivers, N. J. Super. (App. Div. 2010) (reversing and remanding a trial court’s denial of an application for a change of custody, due to the trial court’s failure to conduct a plenary hearing and interview of the children when there is a substantial and genuine custody issue, noting ‘the failure to conduct a plenary hearing and to interview the child was inconsistent with R. 5-8:6 (noting Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998)).
Newman v. Newman, N. J. Super. (App. Div. 2007) (reversing and remanding a trial court’s denial of an application for joint legal custody and expanded parenting time, requiring that said application have an appropriate hearing and an interview with the teenage child be conducted, in light of conflicting certifications and the age of the child).
[vii] Bill No. S1741, A3288, 5/8/2008 Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee
[viii] S1741 did not pass in the previous two-year session. The new bill in the current 2010/2011 session of S1741 is S57 and was referred to the Senate Health and Human Services Committee. A3288 was also re-introduced as S57 and there is not an identical Assembly version. This status was prepared by the Legislative Information and Bill Room, Office of Legislative Services, New Jersey State Legislature.
[ix] In 1998, the polarization in the sex abuse memory wars was sufficiently intense to prevent a synthesis of the two positions in the “Final report of the American Psychological Association Working Group on investigation of memories of childhood abuse,” Psychology, Public Policy, and Law, 4(4), 931-1068. All that was possible was a juxtaposition of the two positions.
Stephen J. Ceci, 2009; Ceci et al., 2007 –
However, even before 1998, change was already beginning to occur. Researchers whose work was often cited in support of the accuracy of children’s memory had already acknowledged the significant problems posed by children’s suggestibility, especially when they were exposed to leading interviews. William C. Thompson, K. Alison Clarke-Steward, and Stephen J. Lepore, in “What did the janitor do? Suggestive interviewing and the accuracy of children’s accounts,” Law and Human Behavior, 21 (4), 405-426 , stated that, under certain circumstances, “the children rapidly came to believe that [the false] suggestions were true” (p. 421 and that their suggested false beliefs were maintained after a delay even when they were questioned in a non-leading fashion. While Stephen J. Ceci, the pioneering researcher on children’s suggestibility whose work has informed the standardized protocols used here, still argues that mental health professionals base their belief in the accuracy of children’s traumatic memories on “unwarranted assumptions,” he also acknowledged that exposure to suggestions does not inevitably produce tainted reports (Stephen J. Ceci, Sarah Kulkofsky, J. Zoe Klemfuss, Charlotte D. Sweeney, & Maggie Bruck (2007), “Unwaranted assumptions about children’s testimonial accuracy,” Annu. Rev. Clin. Psychol., 3,311-28). Furthermore, while his keynote address at the NJ ICLE December 5, 2009 Child Custody Symposium “Questions, Controversies, and Consensus Regarding Interviewing Young Children: Highlights”, emphasized suggestibility and presented a videotape of a false rape allegation by a pre-school child, During the Q & A period, he acknowledged that his laboratory does not conduct research on children who are reporting actual trauma; that the closest research analogue consists of certain kinds of medical procedures, which he does not study but which are studied by Gail Goodman and colleagues, known for their emphasis on children’s memorial accuracy; and that he has not yet collected measures of affect (displayed emotion) in the children whose suggested statements he has studied.. His answers indicated the evolution of the field because they acknowledged the differences between the data upon which clinicians and academic researchers historically relied.
Hershkowitz et al. (2005)
Hershkowitz, I., Horowitz, D., & Lamb, M.E. (2005). Trends in children’s disclosure of abuse in Israel: A national study. Child Abuse & Neglect, 29, 1203-1214. This study investigated the variables upon which both “pro-prosecution” and “pro-defense” experts based their arguments, and found results supporting each.
[xii] American Prosecutors Research Institute/APRI, Holmes & Vieth, 2003
[xiii] Hershkowitz et al., 2005
[xiv] Supra note #10. These terms paraphrase the titles of each interview step in the NICHD protocol.
[xv]Irit Hershkowitz, Dvora Horowitz, & Michael E. Lamb, Trends in Children’s Disclosure of Abuse in Israel: A National Study, 29 Child Abuse & Neglect 1203 (2005).
[xvi] Holmes & Vieth, supra, note 12.
[xvii] Lamb et al., supra, note 15.
[xviii] In describing the Finding Words interview practices, Dr. Milchman draws on her professional experience reviewing N.J. prosecutors’ interviews as well as the published materials.
[xix] Lamb et al., 2007, pp. 1224-1225
[xx] Lamb et al., 2007, pp 1226-1227
[xxi] Lamb et al., supra, note viii 1227.
[xxii] Lamb et al., supra, note viii 1217.
[xxiii] Lamb et al, supra, note viii 1221.
[xxiv] Lamb et al., supra, note viii 1223.
[xxv] Lamb et al., supra, note viii 1227.
[xxvi] Lamb et al., supra, note viii 1228.
[xxvii] Hershkowiitz et al., 2006
[xxviii] State v. Michaels, 136 N.J. 229 (1994), the seminal case regarding appropriate procedures for interviewing children in sex abuse cases. The Supreme Court held that a pretrial hearing was necessary since it was evident that the interrogations involved coercive and suggestive measures that may have tainted both the children’s out of court statements and the children’s in-court testimony.
[xxix] Lamb et al., 2007, p. 1223
[xxx] Hershkowitz et al., supra, note xxi.
[xxxi] CornerHouse, supra, note xvi.
[xxxii] Lamb et al., supra, note viii 1231
[xxxiii] Mackowski, 317 N.J. Super. at 15 (Kestin, J.A.D., concurring).