What Factors Will the Court Consider in a New Jersey Child Custody Case?

Posted by Joseph D. Lento | Nov 22, 2016 | 0 Comments

When parents are involved in a child custody dispute in New Jersey, each parent may have an entirely different perspective as to how they believe custody should be, and the child or children may have a different perspective yet.  Emotions are often high in New Jersey custody cases, and parents may not always have an objective sense of how a judge will receive the parents' respective arguments as to why custody should be decided in a certain manner.

Regardless of how parents believe custody should be, and regardless of the emotions involved, parents in a New Jersey custody dispute must understand which factors New Jersey Family Court will consider when deciding a custody case.  Filing a custody petition in New Jersey or responding to a custody petition without such information is likely to result in an unexpected and undesirable outcome.  When the custody of a child or children is at stake, parents cannot afford to have this happen.

(For purposes of custody in New Jersey, a "party" is most often child's parent, but grandparents can petition the Court for custody, and third parties can also petition for custody under the legal doctrine of "in loco parentis."

The "Best Interests of the Child" in New Jersey

Some parents have more familiarity with New Jersey custody proceedings than others, and because of this, may be familiar with what is known as the "best interest of the child."  As important as it is for parents to be familiar with this term, a full understanding of what factors will be used by the Court to determine what is the "best interest of the child" is critical to success in a child custody case in New Jersey, whether achieved in or out of the courtroom.

How does the Court decide custody in New Jersey?

The factors that New Jersey Superior Court considers when deciding custody are codified by statute under N.J.S.A. 9:2-4(c).  Although the "best interest of the child" is the overarching consideration, the judge in a custody dispute will base the decision as to what is in the "best interests of the child" on the following factors:

  • The parents' capacities to be able cooperate, communicate and agree about issues in regard to the child or children.
  • The parents' readiness to accept custody and any history of refusal to allow the other party to have parenting time not based on corroborated abuse.
  • The dealings and relationship between the parent, child and siblings.
  • The history of domestic violence (or spousal abuse).  Under New Jersey's Prevention of Domestic Violence Act, it is presumed that the best interests of a child or children are served by an award of custody to the non-abusive parent. N.J.S.A. 2C:25-29(b)(11).
  • The safety of the parent and the safety of the child or children from any abuse by the other parent.
  • The child's or children's preference when they are of appropriate capability and age to form an intelligent choice.  New Jersey Court Rules allow the New Jersey trial court with the discretion to conduct an "in camera" interview of  the  child or children either  on  its  own  motion  or  at  the  request  of  a  parent.  N.J. Ct. R. 5:8-6.  New Jersey case law also holds that "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 know."  Lavene  v.  Lavene,  148  N.J.  Super.  267,  273  (App.  Div.  1997).
  • The needs of the child or children.
  • The stability of each party's home environment.
  • The quality and continuity of child's or children's education.
  • The fitness of the parents.
  • The geographical proximity of the parents' homes.
  • The  extent  and  quality  of  the  time  spent  with the  child  prior  to  or  subsequent  to  the separation.
  • The parents' employment responsibilities.
  • The age and number of the children. 

Can parents in New Jersey agree to a custody arrangement without a trial?

Parents in New Jersey do not have to have the Court decide custody in that they can come to an agreement without the judge having to decide, but there are important considerations in this regard.   As with a custody arrangement as decided by the Court, custody arrangements as negotiated and agreed upon by the parties, and the parties' attorneys when applicable, must be in the "best interests of the child." 

Although the above factors do not need to be considered individually by the parents as is the case when a judge decides custody, the Court must consider the custody arrangement as agreed upon between the parties through the lens of what is in the child's or children's best interests.  Although a judge will not go through each factor when reviewing a custody agreement as would be the case when the Court decides custody, the judge will have these factors in mind.  If the custody arrangement as agreed upon by the parents is in the child's or children's best interests, it will be honored; an agreement that is contrary to a child's or children's will not be honored.  N.J.S.A. 9:2-4(d).

New Jersey case law reinforces the principle that parents are encouraged to agree to custody on their own when possible and appropriate.  This is based upon the reasoning that regardless of how experienced and knowledgeable a New Jersey custody judge may be, "no stranger in a judicial robe, however able and well-motivated he or she may be, is equipped to make a decision as valid as the parents working together might make." Tahan v. Duquette, 259 N.J. Super. 328, 336 (App. Div. 1992). 

Although New Jersey child custody law recognizes that parents are often in the best position to determine what is best of their circumstances and that of their child or child, the ultimate power is in the hands of the Court.  This is based on the concept of "parens patriae." In a general sense, the concept of parens patriae is that the government, or any other authority, is regarded as the legal protector of citizens unable to protect themselves.  In New Jersey Family Court, the concept is more tailored in that it is used to assert the Court's responsibility to children who are not in a position on their own to decide what is in their best interests.  This is because as well-intentioned as parents may be, they may not always make decisions that are in their child's or children's best interests.  The concept of parens patriae allows New Jersey Family Court the "last word" in custody agreements between parents.

In exercising the concept of parens patriae in custody cases, New Jersey Family Court will consider what is in the best interests of the child or children, but will go further in enforcing the Court's "special responsibility to safeguard the interests of a child at the center of a custody dispute."  Kinsellav. Kinsella, 150 N.J. 276, 317 (1997). Under this standard in New Jersey, even a child's natural parent(s) may be denied custody where same is in the child's best interest. S. v. H.M., 111 N.J. Super. 553, 559 (App. Div. 1970).  In S. v. H.M., for example, the child's extended relatives were granted custody where the child's natural mother was found unfit due to her prior abandonment of the child.

What happens if parents cannot agree to custody in New Jersey?

Because parents often have different views as to what is best for their child or children, and because one parent often may not be able to understand the other parent's point of view, a custody agreement between the parents is not always possible.  When a child custody agreement in New Jersey is not able to be achieved through negotiation and the case has to be resolved in the courtroom, judges in New Jersey Family Courts are required by law to place the above-referenced New Jersey child custody factors "on the record" when deciding a case in court.  N.J.S.A. 9:2-4(f).

Prior to trial, however, parents will be required to participate in custody and visitation mediation in an continued effort to resolve the child custody by agreement.  Child custody mediation in New Jersey is often effective in enabling parents who were otherwise opposed to agreeing to a custody arrangement to reconsider their differences.  When these differences cannot be resolved through mediation, however, the parents will be required to submit a "parenting plan" to express each parent's proposed arrangement for custody and parenting time.  The judge will review each parent's parenting plan, and will either select the parenting plan that is in the child's or children's best interests, or will create its own parenting plan, again, based on what will be in the child's or children's best interests.

Is arbitration allowed in New Jersey child custody cases?

Depending on the parents' particular circumstances, and the circumstances of the custody case itself, in some stances, parents believe that arbitration, rather than a potentially exhaustive custody trial, will allow for a more effective resolution to the custody issues in dispute.  Arbitration of child custody cases is permitted under the New Jersey Arbitration Act (N.J.S.A. 2A:23-B-1 to -32), ad parents who would prefer to resolve custody issues through arbitration can do so in New Jersey if certain conditions are satisfied. 

Specifically, the decision to arbitrate a child custody case in New Jersey must be memorialized in writing or otherwise recorded to  “clearly establish that the parties are aware of their rights to a judicial determination and have knowingly and voluntarily waived them.”  Fawzy v. Fawzy, 199 N.J.  456, 462 (2009).    Although an arbitrator's award regarding custody is as final as a decision of the Court in most instances, an arbitrator's aware is not always absolute however.  An  arbitrator's award of custody or parenting time will be subject to judicial review where a parent "establishes that the award threatens harm to a child."  Johnson v. Johnson, 204 N.J. 529, 548 (2010).  Parents must understand, however, that demonstrating "harm to a child" is "a significantly higher burden than the best interests analysis.”  Ibid.

What is a custody "parenting time evaluation" in New Jersey?

Prior to a child custody trial, the judge may also order a custody "parenting time evaluation."  A parenting time evaluation is conducted by a psychologist who will produce a report for the Court.  The parents can agree on the evaluator, or they can each hire their own if financially practical. Parents must understand that custody evaluations can be financially prohibitive.  If a parent cannot afford a private custody evaluation in New Jersey, the judge can order a "best interest evaluation," which is performed by the Probation Department located in the New Jersey county where the custody case is taking place. 

Regardless of whether one evaluator, or more than one evaluator, is involved, or whether a private evalution is conducted or the applicable Probation Deparment conducts the evaluation, the evaluator(s) will interview each parent, and will also interview the child if appropriate.  Whether the child will be interviewed will depend on factors such as the child's age and related considerations.  Other relevant parties, such as a parent's new husband or wife for example, may also be interviewed.  Psychological, medical, and school records may also be requested by the evaluator to review for purposes of preparing the report for the Court.  Parents should understand that the resources of county Probation Departments are limited, and a private custody evaluation is often more comprehensive.  Because how custody is decided is so significant to both the parents' and child's or children's lives, parents should take all possible steps within their power to have the custody decision go in their favor.  If a private custody evaluation will provide the Court with a better understanding of why the Court should rule in a particular parent's favor, such a step is not only recommended, but maybe necessary.

The reason why parents must do what is necessary regarding arranging an effective custody evaluation is because the judge will put much weight on the evaluator's report, and ultimately, the parenting time evaluation can be a major factor in the judge's decision regarding which parent gets custody and how custody will be specifically ordered.  The parenting time evaluation is not the only consideration that the Court may use in its decision regarding child custody.  If the matter does proceed to trial, New Jersey Family Court will also  consider other evidence, including the testimony of any relevant witnesses, whether other family members, or other parties yet.

Are expert witnesses allowed in child custody trials in New Jersey?

New Jersey Family Law, which is based upon the decisions in prior child custody cases, requires that parents "be  afforded  every  reasonable  opportunity  to  introduce  expert  witnesses  whose  evaluation  of  the  family  situation  may  assist  the  judge  in  determining  what  is  best  for  the  children."  Fehnel  v.  Fehnel,  186  N.J.  Super.  209,  215  (App.  Div. 1982).  New Jersey Family Law also mandates that the Court must decide the custody issues based on the above-referenced factors, and may not “abdicate its decision-making role to an expert."  P.T. v. M.S., 325 N.J. Super. 193, 216 (App. Div. 1999). 

New Jersey Child Custody Attorney | New Jersey Family Law Attorney

The stakes can be high when New Jersey Family Court decides the custody of a child or children.  A New Jersey custody attorney can help you achieve your goals, whether custody issues are resolved outside of Court, or at trial.  Whether the petitioner or respondent in a child custody case in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean or Salem County, an attorney experienced with New Jersey Family Court practice and procedure can help you navigate the steps required, and can provide you with the advice and advocacy needed to get your position heard and recognized.  Contact attorney Joseph D. Lento today to learn how he can help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in New Jersey and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings! He does not settle for the easiest outcome, and instead prioritizes his clients' needs and protects their interests.


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