When parents separate, finding a way to share custody of the children can be a painful and emotionally challenging effort. Parents and children suffer with separation and struggle to find a path to restructure their family.

If parents are not able to reach agreement as to how to share custody of their children, and they elect to proceed to court for resolution, the counties do not have a uniform process for judges or other court personnel to interview the children as part of the litigation process . In this article we address the procedures in Montgomery and Philadelphia Counties.

Effective January 2019, rules/practice in custody cases in Montgomery County have changed regarding the interviewing of children by court personnel. Your children must be interviewed by the assigned custody conciliator without parents or counsel present and without a transcription of the session. If the case is not settled at that level, the child will be interviewed a second time – this time by a Judge. This is unquestionably a very stressful event for any child. However, this can be totally avoided by utilizing a Collaborative Law approach, since there is no Court appearance in a Collaborative case, and therefore no appointed Custody Conciliator or Judge.

If litigation is chosen rather than Collaborative, and both sides are represented by an attorney, the attorneys, by Court Rule, have the right to be present during the interview. Most lawyers decline to do so, in order that the Judge can have a more intimate and less stressful discussion with the child. The interview is recorded and can be transcribed.

The interview of a child, by a Custody Conciliator takes place in the Conciliator’s room, and with a Judge, in the Judge’s office. The interview is recorded, but the record is generally sealed, meaning no one but the Judge and the child will know specifically what is said between them.

Each County treats this matter differently. In Philadelphia County, generally, children 6 years of age or older will be interviewed by the Judge. The case is first heard before a Custody Master but the children are not interviewed and if the matter is not resolved, the case will be then scheduled for a trial before a judge. Some judges will interview a younger child, but this is rare. Attorneys have the right to be present during the interview but, as stated above, generally waive that right. The interview is recorded and can be transcribed.

A Judge will rarely ask a young child his or her preference. Rather, the interview concerns which parent the child feels more comfortable around and which parent is the emotional “rock” for the child. Older children may be asked to state a preference, or may offer one to the Court.

To avoid their children being drawn directly into the custody proceeding and to avoid unnecessary trauma for our children and potential violation of their rights, we recommend that you choose Collaborative Law. This non-litigation process for child custody and parenting plans will allow the parents to set the custody schedule which works for their child and for them. Additionally, in the collaborative process, a trained Child Specialist can be employed to assist parents and children in navigating this potentially difficult discussion. Permitting a Judge, who may have been involved with your family for as little as an hour or two, to make this decision, is simply not in your child’s best interest. The collaborative process avoids this completely and places the decision making and creation of a working custodial arrangement in the hands of those directly affected.

About the Authors

Bella Schnall, Esquire is of counsel to the Philadelphia office of Greenblatt, Pierce, Engle, Funt & Flores, LLC. More information about Bella can be found here.

Lee A. Schwartz, Esquire is a Partner in the SchwartzJordan Law Group in Philadelphia. More information about Lee can be found here.

Barbara B. Zulick, Esquire is the founder of Zulick Law, LLC located in Norristown, Montgomery County, PA. More information about Barbara can be found here.