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Lavene v. Lavene

Decided: March 14, 1977.


Fritz, Ard and Pressler. The opinion of the court was delivered by Pressler, J.A.D.


[148 NJSuper Page 270] In this matrimonial action a dual judgment of divorce was entered dissolving the marriage of

the parties, plaintiff Lorraine Lavene and defendant Bernard Lavene, on the grounds of defendant's cruelty and plaintiff's adultery. The judgment also awarded custody of the child of the marriage to defendant, allowed plaintiff alimony of $600 a month, provided for equitable distribution and denied an allowance of counsel fees to the wife. Plaintiff appeals from the custody award, the equitable distribution ordered and the counsel fee denial. Defendant cross-appeals from the alimony award, having withdrawn his cross-appeal from the divorce judgment entered in plaintiff's favor.

We have carefully scrutinized the transcript of the 11-day trial which resulted in this judgment. It is our conclusion that the lack of adequate findings by the trial judge with respect to the custody award requires a remand as to that issue, both for the making of further findings and for the presentation of additional proofs. We also remand with respect to various of the financial issues for the reasons herein stated.

What is particularly disturbing, however, about these proceedings and would itself require a remand, was the judge's failure to make any record notation of his private interview with the child. The record, indeed, does not even indicate that such an interview had taken place. We were advised that it had, but only as a result of our inquiry at oral argument.

N.J.S.A. 9:2-4 was amended, effective November 11, 1974, prior to the trial here, to require the trial judge to interview a child whose custody is in dispute and who is of "sufficient age and capacity to reason as to form an intelligent preference as to custody." The judge is also required to give "due weight to the child's preference." The child here was almost 8 1/2 at the time of the trial. While a child of that age would clearly lack the maturity and judgment to make a dispositive statement of custodial preference, nevertheless it is our view that her preference and the reasons therefor, if she wished to express them, ought to be a factor which the court should consider along with all of the

other relevant factors. The age of the child certainly affects the quantum of weight that his or her preference should be accorded, but unless the trial judge expressly finds as a result of its interview either that the child lacks capacity to form an intelligent preference or that the child does not wish to express a preference, the child should be afforded the opportunity to make her views known. We would think that any child of school age, absent the express findings we have indicated, should have that opportunity and that the judge would be assisted thereby.

The manner in which the interview is conducted and the persons present are matters which must be left to the trial judge's discretion. A private interview out of the presence of the contesting parents and their attorneys may well be indicated in order to assure the child's freedom of expression.*fn1 But the need for privacy does not constitute a warrant for total secrecy. The trial judge is clearly obliged to disclose for the record his findings as to the capacity of the child to express a preference. If he has concluded that the child has capacity, he must then state whether such an expression of preference was made. If the judge relies to any degree at all on the preference expressed, a matter which he must also state, then, of course, he must make known, at least in general terms, his reasons for such reliance and the extent thereof.

These are hardly novel principles despite the recent date of the amendment of N.J.S.A. 9:2-4. As stated in Callen v. Gill , 7 N.J. 312 (1951):

The authority of the judge to conduct a private examination of a child in order to discover its wishes as to custody is well established * * *, and the ages beneath which the child shall not be examined at all * * * and above which the examination shall be public are largely within the discretion of the court. But the object of a private

examination is to ascertain the predilection of the child, and that predilection, when ascertained shall be openly stated. It is a factor which will be considered by the trial court and an appellate court as well. * * * The preference of a young child has a place, although not a conclusive place * * *, in the determination, and the preference ascertained by the judge in private, if that be the procedure, should be stated openly as the end result of the examination. But no assertion of fact by the child should be permitted by the judge to influence his decision unless he makes the same known. Parties must have an opportunity to be heard upon the ...

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