Can Children Express Preference in New Jersey Custody Proceedings?

A look at the effects of a child’s preference on custody in New Jersey.

This article provides an overview of the impact of a child’s preference on custody proceedings in New Jersey. If after reading this article you have questions, please contact a local family law attorney for advice.

Child Custody Basics in New Jersey

Parents can make custody orders simple by reaching their own agreements. However, more often, judges are needed to decide custody when parents can’t agree.

The best interests of the child are the central focus of any custody decision. Nevertheless, a child’s best interests aren’t easy to define. A judge will evaluate a number of factors to determine the arrangement that best addresses a child’s needs, including:

  • each parent’s ability to communicate and cooperate with the other in matters regarding the child
  • each parent’s willingness to encourage the child to maintain a strong relationship with the other parent
  • the child’s relationship with each parent and his or her siblings
  • the child’s safety in each parent’s care
  • the child’s needs
  • each parent’s ability to offer a stable home environment
  • the quality and continuity of the child’s education
  • the child’s parental preference if of a sufficient age and capacity to reason
  • each parent’s fitness to care for the child
  • each parent’s geographical proximity to the other
  • each parent’s employment responsibilities
  • each parent’s time with the child prior to the parents’ separation
  • each child’s age, and
  • each parent’s history of domestic abuse, if any.

In addition to the above factors, a judge may consider any other circumstance he or she deems pertinent to the child’s best interests. A child’s overall health and happiness are also relevant to custody. Moreover, a child’s religious upbringing can be considered so that a child may continue in his or her faith. In one New Jersey case, a Jewish father was awarded custody of his child primarily because he would be able to give the child the opportunity to attend a Hebrew school and attend temple, whereas the mother lived 80 miles away from any Jewish community center. To learn more about custody decisions in New Jersey, see Child Custody in New Jersey: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

A New Jersey court is required to find out and consider the preference of a child who has the ability to reach a sound judgment. In most instances, a judge won’t be able to tell if a child is sufficiently mature to form a preference by looking only at the child’s chronological age. A child’s maturity and reasoning ability is assessed on a case-by-case basis.

For example, in one New Jersey case a 10 year-old’s custody preference was considered but didn’t affect the outcome of the case. In this unusual case, the 10 year-old girl expressed her preference to live with her stepmother rather than her father. Nevertheless, the court determined the girl’s natural parent – her father – didn’t pose a risk to her safety and thus, should be awarded custody over a stepparent. Furthermore, the court stated that custody preferences of children under 12 aren’t controlling and are given little, if any weight due to the child’s lack of maturity and inability to reason on his or her own.

However, in another case, a lower New Jersey court failed to listen to a 16 year-old’s custody wishes. A concerned judge refused to interview the 16 year-old girl about her parental preference. The judge feared that interviewing the child would force her to choose between her parents. Nevertheless, the higher court decided it was a serious mistake for a judge to not take the mature child’s wishes into consideration when determining custody.

A judge doesn’t have to follow the custody wishes of a mature child. However, even a young child’s expressed preference can be a factor that influences a judge’s custody decision. Whatever the court decides, any custody arrangement must serve the best interests of the child.

Will My Child Have to Testify in Open Court?

It’s rare for a child to take the witness stand at a custody trial. More often, children are kept out of their parents’ custody feuds unless an emergency requires the child to testify. Custody trials can be overwhelming to a child who feels caught in the middle of disagreements between his or her two parents.

Still, children can still have a voice in custody cases without setting foot inside a courtroom. A parent can file a request for the court to interview a child about his or her custody wishes. A court can also decide to interview a child on its own motion. A judge will conduct the interview outside of the courtroom. Attorneys for each parent may attend the in chambers interview and can submit questions for the judge to ask the child. A court reporter records the interview and will prepare a transcript of the child’s testimony.

In other cases, a judge may appoint a guardian ad litem to interview a child. Nevertheless, New Jersey law prevents a court from admitting a child’s testimony given to anyone not appointed by the court. A court-appointed guardian ad litem will find out a child’s custodial desires and parenting needs. The guardian ad litem, rather than the child, presents the child’s wishes to the court at any trial on custody.

If you have additional questions about the effects of children’s preferences on custody proceedings in New Jersey, contact a local family law attorney for advice.

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