How Does New Jersey Determine a Child’s Best Interests?

As a parent, going through a divorce means establishing the legal right to spend time with your children and continue playing an active role in their development. While under New Jersey law neither mothers nor fathers are favored in child custody proceedings—rather the courts are supposed to make decisions based on the best interests of children–the reality is that sometimes doesn’t play out the way one would think and there remains a perceived bias against fathers; and Mother’s feel a greater sense of entitlement just because they are mothers. Fathers sometimes feel that mothers still have a leg up in custody proceedings involving minor children.

Whether this is the case in specific custody proceedings may or may not be true. The societal norms of times past, when mothers took care of children while fathers went to work, can still echo and could possibly exert an unconscious influence on some custody decisions and leave fathers feeling like they were not given fair consideration.

With this in mind, fathers must focus on demonstrating and reminding the Courts that New Jersey law favors their desired custody rights. This starts with understanding the determination of a child’s best interests in custody decisions and the “best interest” factors listed in Section 9:2-4 of the New Jersey Revised Statutes.

What Is Best Interest of the Child in Family Court?

In New Jersey, child custody determinations made by the family courts are always based on the “best interests” of the children involved. Decisions as to child custody are not made based on what parents want. If the judge does not think it is in the child’s best interests to award you custody, you will be out of luck in getting it.

With that being said, public policy favors ensuring “frequent and continuing contact with both parents” after a divorce, and it encourages both parents “to share the rights and responsibilities of child rearing.” While that may not mean a 50-50 division of custody rights, it does mean that the court recognizes the importance in most cases of both parents being active participants in their children’s lives and will seek to establish that objective while considering children’s best interests first and foremost.

New Jersey Custody Factors

The court considers numerous factors listed in N.J.S.A:S 9.2-4 in determining children’s best interests. To help in achieving their custody goals, divorcing parents must develop a parenting plan that addresses all of the factors. The factors include:

“[T]he parents’ ability to agree, communicate and cooperate in matters relating to the child.”
“[T]he parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse.”
“[T]he interaction and relationship of the child with its parents and siblings.”
“[T]he history of domestic violence, if any.”
“[T]he safety of the child and the safety of either parent from physical abuse by the other parent.”
“[T]he preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.”
“[T]he needs of the child.”
“[T]he stability of the home environment offered.”
“[T]he quality and continuity of the child’s education.”
“[T]he fitness of the parents.”
“[T]he geographical proximity of the parents’ homes.”
“[T]he extent and quality of the time spent with the child prior to or subsequent to the separation.”
“[T]he parents’ employment responsibilities.”
“[T]he age(s) and number of the children.”
Any other factor the court wishes to consider.

As you can see, some of these factors are more concrete and measurable than others, and some may weigh more heavily in certain specific situations. That said, when going through a divorce involving children, none of these factors should go overlooked, as each individual factor will ultimately weigh in favor of one parent’s preferred custody plan or the other’s desired post-divorce parenting rights.

Of course, the ideal scenario is that both parents are on the same page regarding what is best for their children. If you and your spouse agree regarding custody and visitation (or “parenting time”), then there is no need to address the above factors.

That said, before you assume that everything will work out fine, it is important to be aware of the issues that many divorcing couples overlook. Doing so often leads to contentious (and costly) disputes down the line.

From pick-up and drop-off schedules to curfews and screen time, there are a variety of types of seemingly “minor” issues that can create problems for divorced parents down the road. When deciding what is in your children’s “best interests” during your divorce, you must thoroughly address all issues so that you do not unintentionally put your child at the center of disagreements between you and your former spouse in the future. An experienced divorce and child custody attorney in New Jersey can help you consider all of the issues that could potentially arise so that they can be addressed before they cause problems.

When Parents Cannot Agree on Custody

When parents disagree on custody issues, the court will likely first order mediation as a step to avoid trial; however, if domestic violence was a factor in the marriage, this would probably not be the case since there may be prohibitions against being in the same room together. Notwithstanding, if mediation is unsuccessful, the judge may order a custody evaluation by a mental health professional to help recommend and determine what custody arrangement is in the child’s best interests.

Evaluations can be expensive (you and your spouse are responsible for paying the evaluator) and take weeks to months to complete. They can involve psychological testing and interviews with the divorcing parents, their children and extended family members, as well as possibly friends, children’s teachers and others who interact with your family. These evaluations are not binding on the court but can most likelyheavily influence custody decisions.

If this is ordered in your case, you should discuss any concerns you have about it with your child custody attorney. If you feel you are being treated unfairly by the evaluator, bring that up to your lawyer before the report is submitted to the judge.

Types of Custody Arrangements the Court May Decide Are in the Best Interests of Children

There are different types of custody arrangements that the court may decide is in the best interests of the child. They include the following categories:

Legal custody: Legal custody gives parents the right to make decisions related to healthcare, education, safety and other important areas for their children. It can be shared by both parents, which is preferred by the courts as long as it is in the child’s best interests, or one parent may be granted sole legal custody. When legal custody is shared, both parents have equal input into decisions affecting their child.
Physical custody: Physical custody, which is also known as residential custody, describes who the child lives with. In some cases, joint physical custody can be worked out, especially if parents live nearby. From a practical viewpoint, though, it can be hard to split physical custody 50-50 between parents, so children will often live with one parent more than the other. The parent the child lives with more often is considered the primary custodial parent. The other parent is theparent of alternate resident. . Parenting time agreements describe when each parent will have the child.
Sole custody: In some situations, one parent may have sole legal and physical custody of the child. The other parent may have visitation rights and in some cases visitation may be supervised by a third party if there are concerns about the child’s safety.
Any combination of arrangement that the court believes is in the best interests of the child.

Under the law, when parents agree on a child custody arrangement, the court must order that arrangement, unless it is determined to conflict with the child’s best interests. It is usually the best situation for all concerned for parents to have control of making their own arrangements, rather than having an arrangement made by the court. Court’s determining custody arrangements, can leave everyone—parents and children—unhappy with the outcome.

Our divorce and child custody attorney in New Jersey works to help negotiate and facilitate outcomes that are fair to fathers and mothers and that are in the best interests of children. And if your custody dispute goes to trial, we will help you develop the most beneficial case possible to present to the court.

Speak With a Divorce and Child Custody Attorney in Hackensack, NJ

If you are a parent who is preparing to go through a divorce in New Jersey, it is important that you speak with an experienced attorney about how to prove that your desired custody rights will serve the “best interests” of your children. A skilled attorney will help ensure that you do not make a mistake in this area, which could affect the future you have with your children for a long time to come. We can help you negotiate a mutual agreement with your ex-spouse or represent you in court if an agreement on custody is not in the cards for your relationship. To schedule an appointment with Men’s & Fathers’ Rights Divorce Lawyers, please call (201) 880-9770 or contact us online today.

Carrie S. Schultz, Esq. – author

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How Does New Jersey Determine a Child’s Best Interests?