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In Camera Interviews of Children

In the realm of family law and child custody cases, the emotional and psychological well-being of children is paramount. One tool a court may utilize to understand a child's perspective is the in camera interview. This article explores the significance of in camera interviews with children and specifically examines the recent case of In re Marriage of Jessica F. and Justin H., 2024 IL App (4th) 231264.

Understanding In-Camera Interviews

In camera interviews refer to private sessions where a judge interviews a child without the presence of parents or guardians. These interviews aim to gather the child’s thoughts and feelings regarding custody, visitation, and other pertinent issues. The primary objective is to ensure that the child's voice is heard, while protecting the child from potential manipulation or stress associated with parental conflicts.

Best Interest of The Child

As part of divorce hearings and custody battles the court looks to satisfy the best interest of the child. When deciding what is in a child’s best interest the court looks to numerous factors such as a child’s safety and the welfare of the child. 750 ILCS 5/602.7(b). The court refers to the best interest of a child in deciding which parent receives decision making responsibilities and parenting time. The court must take into account seventeen factors outlined by section 602.7(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) when deciding the best interest of a child regarding parenting time. Id. Additionally, the court shall consider 15 factors regarding decision-making pursuant to section 602.5 of the Act. 750 ILCS 5/602.5(c)(1). In determining the allocation of significant decision-making, a court “shall consider all relevant factors, including, without limitation, the following: the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making” 750 ILCS 5/602.5(c)(1). Additionally, in deciding a child’s best interest regarding the allocation of parenting time “the court shall consider all relevant factors, including, without limitation, the following: the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time” 750 ILCS 5/602.7(b)(2). A court may use a best interest hearing in many different situations. The intended purpose of a hearing for best interest is to “minimize any further damages to the child by shifting the court’s scrutiny to the child’s best interest.” In re Jay H., 395 Ill. App. 3d 1063, 1072 (2009).

Legal Framework

In Illinois, the courts have broad discretion in determining whether to conduct in-camera interviews. The case of In re Marriage of Jessica F. and Justin H., 2024 IL App (4th) 231264 highlights important legal standards and considerations for such interviews. In this case, the father filed a motion requesting the circuit court to conduct an in camera interview with the minor child to ascertain his “wishes as to allocation of parental responsibilities.” However, the court did not rule on the father’s motion for an in camera interview. On appeal, he argued the circuit court abused its discretion in failing to rule on his motion for an in camera interview under the facts of this case.

In Illinois, the law provides that “there is no absolute right to present a child's testimony during a custody proceeding.” In re Marriage of Willis, 234 Ill. App. 3d 156, 159 (1992). A circuit court “does not need to interview a child in order to consider and weigh what it considers to be the wishes of the child.” Grunstad v. Cooper, 2012 IL App (3d) 120524, ¶ 22 (quoting In re Marriage of Wanstreet, 364 Ill. App. 3d 729, 733 (2006)). However, a court may still conduct in camera interviews if it deems it necessary. Section 604.10(a) of the Illinois Marriage and Dissolution of Marriage Act provides “[t]he court may interview the child in chambers to ascertain the child's wishes as to the allocation of parental responsibilities.” (750 ILCS 5/604.10(a) (West 2022). The Acts specific wording provides that the decision to conduct in camera interviews is solely within the discretion of the circuit court. In re Marriage of Knoche, 322 Ill. App. 3d 297, 304 (2001); 750 ILCS 5/604.10(a) (West 2022). The circuit court will have been found to have abused its discretion only “where no reasonable person would agree with the position taken by the [circuit] court.” In re Marriage of Agers, 2013 IL App (5th) 120375, ¶ 24. The appellate court will not replace the judgment of the circuit court if it determines there is a good reason not to interview a child in camera. In re Marriage of Johnson, 245 Ill. App. 3d 545, 554 (1993).

Pitfalls of In-Camera Interviews

The court in In re Marriage of Jessica F. and Justin H., noted multiple reasons in which a court would elect to not conduct in camera interviews. These reasons include:

  • In camera interviews “place[ ] a tremendous amount of pressure on the child.” In re Marriage of Hefer, 282 Ill. App. 3d 73, 76 (1996);

  • In camera interviews may also “entice parents to attempt to influence the child or even tell the child what to tell the judge.” In re Marriage of Jessica F. and Justin H., 2024 IL App (4th) 231264;

  • In the event that a child is free from parental manipulation, “there is good reason to doubt a young child's stated preferences will necessarily coincide with the child's best interests.” In re Marriage of Wycoff, 266 Ill. App. 3d 408, 414 (1994).

  • Subjecting a child to in camera interviews may weaken a child’s relationship with their parents.

The court in In re Marriage of Jessica F. and Justin H., held that in camera interviews may be helpful in some unique scenarios, but they pose serious problems and a court should be careful when permitting these interviews.

The Role of The Guardian Ad Litem and Child Representative

Often a court will choose to investigate a child’s best interest by appointing an attorney to represent the child called a “Guardian Ad Litem” (GAL) or a “Child Representative.” They play a crucial role in legal proceedings involving children, particularly in cases of custody disputes. A GAL ensures that a child’s voice is heard in complex legal matters. The GAL “shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2). The GAL is required to “submit to the court and the parties a written report, written recommendations, or a proposed parenting plan, in accordance with the child's best interests” and is subject to cross examination. 750 ILCS 5/506(a)(2). A child representative is required to “advocate what the child representative finds to be in the best interests of the child after reviewing the facts and circumstances of the case,” and is not subject to cross examination and is not a witness for the Court. 750 ILCS 5/506(a)(3). The child representative “shall meet with the child and the parties, investigate the facts of the case, and encourage settlement and the use of alternative forms of dispute resolution.” 750 ILCS 5/506(a)(3). The child representative has the same authority and obligations to participate in litigations, identical to that of an attorney for a party. 750 ILCS 5/506(a)(3). They also “possess all the powers of investigation as does a guardian ad litem.” 750 ILCS 5/506(a)(3). However, a child representative “shall consider, but not be bound by, the expressed wishes of the child.” 750 ILCS 5/506(a)(3). The child representative “shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments.” 750 ILCS 5/506(a)(3).