This is a common misperception among a lot of parents and frankly, a misunderstanding of the law by many lawyers: some people think that judges can just interview kids about any fact or circumstance involved in the case. Not so – at least not in Michigan. The judge can only conduct an in camera (in chambers) interview of kids in a custody or parenting time dispute about one thing – the best interest factor that addresses the “reasonable preference of the minor child.” That is, of course if the child is old enough to express a preference.
A published case from the Michigan Court of Appeals in mid-August held, in essence that a judge may not just “take a kid’s statement and run with it.” Here is what we mean – in Atherton v Atherton, No 372458 (August 12, 2025) a trial court judge modified parenting time in a case based on an in camera interview of a child and the child’s statements that “dad was threatening to kill mom” if the custody placement that was in place at that time were to be modified (Atherton Slip Op. at 2).
There were motions pending regarding custody and parenting time and the trial court conducted a mini-hearing on July 18, 2024. The hearing was primarily so that the judge could conduct an in camera interview of the minor children on the preference issue. The judge placed on the record what he heard about dad’s indirect threats to harm mom and immediately changed parenting time and the judge then suspended dad’s parenting time (Atherton at 2). The dad appealed as one would expect.
The Court of Appeals reversed. There are 2 big takeaways in the analysis, one is that courts cannot use an interview of the minor children in chambers as the sole basis to change parenting time. Secondly, the court of appeals reiterated that a trial court must hold an evidentiary hearing before changing parenting time. Now, often a lot of the “evidence” is derived from Friend of the Court referee hearings. The court cited 2 cases predominately, HRC[1] and Baretta[2] its finding.
We just had it happen in which a law firm, a well-known firm at that, as a judge to conduct an “in camera interview” (in chambers) of a minor child over claims of abuse at the hands of the significant other of the other parent. It might be an extra step or a little more extra work for the law firm, but it is important to know exactly what the law says before requesting a judge to something in your case. It is easier than needing to correct or supplement your pleadings.
[1] 286 Mich App 444 (2009)
[2] 348 Mich App 539 (2023)
The information contained in this web site is neither legal advice nor is it intended to be legal advice. The information contained in this web site is general information designed to give the reader a basic understanding of some legal concepts about what we do in these areas.
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