Peter Panaro, Massapequa, for petitioner.
John F. Huber, Marmora, New Jersey, for respondent.
Jayne McPartlin, Central Islip,
Law Guardian.
OPINION OF THE COURT
KERRY R. TRAINOR, J. Glenn M., the father of M., applied to this court to accept emergency jurisdiction (see, e.g. Domestic Relations Law § 75-d) and to transfer custody of this child from her mother, Patricia R. At the time of the application, the mother, who resides in New Jersey, had custody pursuant to the custody order from the Bergen County Superior Court, in New Jersey, issued on encourages the preservation and exchange of records between states when appropriately requested (see, Domestic Relations Law former § 75-u). At the same time, the law of New York State is extremely protective of the privacy of a child's in camera testimony in a custody proceeding (see, CPLR 4019). As a result, this court now has to determine if it is legally possible to provide a transcript of this child's in camera testimony to the New Jersey court together with the remaining records which must be made available. The development of the law regarding in camera examination of a child in a custody case, as it exists in New York today, began with the New York Court of Appeals in the seminal case of Matter of Lincoln v Lincoln (24 NY2d 270 [1969]). The Court set forth a procedure and purpose for confidential interviews of child witnesses. It held that the purpose of the sealed confidential interview is to protect the child from having to choose openly between parents or to relate difficulties with them: "an interview in private will limit the psychological danger to the child and will also be far more informative and worthwhile than the traditional procedures of the adversary system—an examination of the child under oath in open court" (id. at 272). When the State Legislature codified these principles and created CPLR 4019, it was done in language that appears to allow only one circumstance for the unsealing of the child's private testimony, and that is for review by an appellate court. The statute reads:
"(a) A court shall not conduct an in camera interview of an infant in any action or proceeding to fix temporary or permanent custody or to modify judgments and orders of custody concerning marital separation, divorce, annulment of marriage and dissolution of marriage unless a stenographic record of such interview is made.
"(b) If an appeal is taken to the appellate division from a judgment or order of the court on any such action or proceeding, the stenographic record of any such interview shall be made a part of the record and forwarded under seal to the appellate division."
The laws of New Jersey also provide for an in camera examination of a child, but the guiding principles are quite different from New York and appear to be in significant conflict with this state. The New Jersey law is not nearly as protective of the child's privacy. The New Jersey statute states that if the
court." The phrase "the court" must be interpreted as the trial judge, whomever that individual is. It serves no purpose to interpret "the court" in
CPLR 4019 to mean only this particular judge to the exclusion of another trial judge who may have to step in for one reason or another. It is this court's determination that the phrase "the court" refers to a legal institution hearing the case and not an individual judge who happens to hear the child's testimony on a particular day while unavailable to do so on another day. Also, this court is convinced that in some cases a review of the transcript by the second trial judge could protect the child from the ordeal of having to testify again. The important point is that this record is sealed whether viewed by this Judge, who no longer has jurisdiction, or by Judge Batten in New Jersey, who now has exclusive jurisdiction. In addition, this court is satisfied that the assurances of Judge Batten are sufficient to protect this child. It has been agreed between these two trial judges that the transcript can only be made available to Judge Batten upon his commitment to follow the provisions of New York's
CPLR 4019 and determine that the provisions of this statute alone constitute the required "good cause" to prevent the unsealing which would result in adult access to the child's testimony in the New Jersey litigation.