A decision issued in November in Rohrbaugh v. Rohrbaugh touches on an important aspect of nearly every custody case that goes to trial. Like almost every state, Pennsylvania wants its trial judges to investigate the views of the child in evaluating what custody arrangement is best.
How is this done? Awkwardly to say the least. The general view is that a child interview must be recorded by a court reporter and take place where counsel for the parties can hear the conversation and propose questions. Because courtrooms are designed to intimidate (high ceilings, elevated bench, etc), most judges conduct interviews in smaller spaces called robing rooms, jury rooms or their offices. In an age when 80% or more of custody cases involve at least one party representing him or herself, it becomes even stranger because it means one or both parents are now sitting across from the child they profess to love while that beloved child is asked to “spill the beans” on what is happening at home.
Child interviews often have a military captive quality. Even small kids are painfully aware that something BIG is going down when their parents fight over which parent will bring them to court and which one will take them away after the interrogation is completed. To see what is going through the mind of a young child, there is a great video on the topic. The first three minutes captures the child perspective. Bing Videos . So, the inclination of most children is to confine testimony to name, rank and serial number. They will try to answer specific questions, but they know that the truth will inevitably hurt one parent or the other. Lots of questions are answered equivocally or with “I don’t remember.” Parents assure their lawyers that they have spoken to the child and the child is clear about what happened and has a clear custody preference. Experienced lawyers know that the kid is stuck right in the middle and unlikely to provide the same clarity when mom and dad are both sitting 40 feet away in a courtroom. The other risk is that we hear from the alienated child. Judges like to ask what activities kids enjoy with each parent. Often the answer is the vanilla: “We watch Jeopardy.” But then there are the kids who profess there is nothing they enjoy about one parent, and they can’t think of any redeeming qualities that parent has. Mark that child: “Alienated” and enter an order for reunification therapy.
Even on a good day, child interviews come in different flavors. In the 1960s comedian Art Linkletter did television shows where he interviewed pre-school kids. His moniker was that “Kids say the darndest things” and he was right. Small children rarely have strong memory and perception skills even when they want to tell the whole truth. As they mature, the same shading of truth parents witness at home comes to the courtroom. This isn’t always the case, but I would advise clients that any custody case erected upon a child’s testimony can prove to be a house of cards.
Parents just don’t get the dilemma created for children by a “recorded” experience testifying in court. The contestants are the two most important people in your life. In one corner, typically weighing more than 150 pounds is “Dad.” In the other corner is “Mom.” They both love you, but they sometimes love winning more. And, if they brought lawyers, there’s big money riding on this match even if Fanduel took a pass on sponsoring it. Some parents are not above incentivizing the young witness with discussions about trips to Disney, the prospects for a car or even allowing your girlfriend to stay over. Unfortunately, judges don’t get much, if any, training in how to interview kids. Many times, they come back on the bench and celebrate just how nice and cooperative the child was during the interview. “Ahh, judge, don’t mean to correct you, but Everett is currently suspended from school for punching the school librarian in the eye?” Kids can be crafty, too.
The sum of this is; a child interview is a tool. It can be useful if the right questions are asked and the child senses that his/her testimony will not be revealed. Unfortunately, the rules require that the testimony be recorded and therein lies a major problem. There are times when a child is so angry at a parent that you will get the “whole truth.” But those times are rare.
Rohrbaugh v. Rohrbaugh 1539 MDA 2025