'In Camera' Interviews in Custody Cases: Reevaluating Due Process Concerns

We all know that courts sit in parens patriae in matters concerning children¹ and that a heightened sense of this condition exists during a contested custody matter. This is certainly a necessary and vital judicial function. In the 2006 Report of the Matrimonial Commission, it was averred that attorneys who represented the children in court proceedings, known as "law guardians," should be referred to as "Attorneys for the Child" and that such an attorney was not a fiduciary or arm of the court.² The Rules of the Chief Judge were then amended in 2007 to further define the child’s attorney’s role and ensure that he did not have greater access to the court than any other attorney in the proceeding. This was to ensure that the "attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation."³ They are advocates, not advisors to the court.⁴ Notwithstanding the clear intent to "level the playing field," there still remains a perceived as well as a substantive advantage which is held by the child’s attorney over the parent’s attorney wherein the child’s attorney is still viewed by some as an arm of the court.

In addition, and notwithstanding that purported equalization of the playing field and elimination of the child’s attorney’s ex parte court communications, attorneys for the parents continue to grapple with the consequences of their exclusion from the court’s in camera "Lincoln" hearing. This hearing involves the court in a custody matter questioning the child(ren) in private, under a cloak of confidentiality, but in the presence of a stenographer and the child(ren’s) attorney only, with regard to such matters as the court deems relevant and as elaborated upon in the Court of Appeals’ decision in Lincoln v. Lincoln.⁵ The attorneys for the parents then remain in the dark as to what transpired, with the record of the in camera hearing being sealed even at the appellate level unless otherwise directed.⁶

‘In Camera’ and Due Process