In New Jersey Divorce When Can a Child Decide Child Custody?

In so many New Jersey divorces, child custody becomes a hot-button issue, with parents differing in their goals for child custody and parenting time arrangements, as well as their visions of “the best interests of the child.” At times, another opinion enters the fold, as older children have their own feelings about which parent they want to live with and with whom they want to spend the majority of their time. Parents confronted with this situation often ask: “How old does my child have to be to decide the child custody arrangement?” The short answer: there isn’t one. Like so many facets of family law in New Jersey, there is no hard and fast answer with regard to this issue, only guidelines to be applied on a case-by-case basis and a body of case law from which to draw. In this article, we will examine this question, utilizing a prior case to draw some significant conclusions about the child’s role in determining the child custody and parenting time configuration.

In the vast majority of New Jersey child custody arrangements, one parent is deemed the custodial parent, while the other, referred to as the “non-custodial parent,” is awarded parenting time or visitation. Generally, parenting time and visitation are interchangeable terms, used to refer to the time that the child spends with the parent who does not have sole legal custody. Parenting time is a relatively new term that evolved under the premise that the non-custodial parent is not simply “visiting” with the child, but participating in his or her parenting. When the court decides to restrict the non-custodial parent or “parent of alternate residence” from having parenting time, this typically arises in a situation in which the court determines that visitation is not in the best interests of the child. Examples of such reasons for lack of visitation include a substance abuse problem, a history of domestic violence, or prior negligence in the child’s care. In certain cases, however, the child will communicate his or her aversion to spend time with the non-custodial parent. So, what then?

Many New Jersey attorneys ascribe to an unwritten rule that a child should have an influence on child custody determinations at the age of 14. Nevertheless, this “rule” is far more a suggestion and certain situations may allow for a child’s influence at a younger age. A New Jersey divorce case in 2013 is particularly illuminating with regard to this issue, providing us with notable insights that can be applied to current and future cases of this kind. The case of Deane v. Deane involved two parents who were married for 20 years before divorcing in January of 2013. During their marriage, the parties had 5 children, one of whom was 18 at the time of the divorce, another who was 12, and triplets who were 9. In their marital settlement agreement, the parties maintained joint legal custody, with the wife deemed the parent of primary residence and the husband deemed the parent of alternate residence. The parenting time agreement was such that the 18-year-old would schedule parenting time directly with the parties and the triplets would alternate 4 overnights with each parent. As for the 12-year-old, the issue of parenting time could not be resolved and was deferred to the court.

After a judge decided that the 12-year-old would engage in the same child custody arrangement as the triplets, the child indicated that she no longer wanted to spend overnights with her father, who lived in another town. The father called upon the court to interview the child, at which time a judge decided that she was mature enough to make this decision for herself. The father subsequently filed a motion for reconsideration, which was denied. He then filed a formal appeal, arguing that the court did not consider all of the relevant statutory factors before making a final determination with regard to parenting time. According to N.J.S.A. 9:2-4(c), the court must consider the following 14 factors before making a determination regarding child custody:

1. Each parent’s ability to communicate and cooperate with the other in matters regarding the child;
2. Each parent’s willingness to encourage the child to maintain a strong relationship with the other parent;
3. The child’s relationship with each parent and his or her siblings;
4. The child’s safety in each parent’s care
5. The child’s needs;
6. Each parent’s ability to offer a stable home environment;
7. The quality and continuity of the child’s education;
8. The child’s parental preference if of a sufficient age and capacity to reason;
9. Each parent’s fitness to care for the child;
10. Each parent’s geographical proximity to the other;
11. Each parent’s employment responsibilities;
12. Each parent’s time with the child prior to the parents’ separation;
13. Each child’s age; and
14. Each parent’s history of domestic abuse, if any.

Note that among the factors above is “the child’s parental preference if of a sufficient age and capacity to reason.” This, of course, can be interpreted in a number of ways, providing the presiding judge with significant discretion to determine the sufficient age and capacity to reason of the specific child in a given case. In the case of Deane v. Deane, the Appellate Court confirmed that prior determinations did not result from consideration of all of the relevant factors, at which time it reversed the previous ruling and remanded the case for further proceedings. The conflicting rulings in this case demonstrate the highly subjective nature of child custody determinations, particularly when the child’s wishes are involved.

Overall, the child’s voice may be heard through a variety of means during divorce proceedings. It is highly unusual for a child to have to testify during a custody trial, as these events can be stressful and traumatic, placing the child in the midst of a battle where he or she has to take sides in a public forum. As in the case above, the child can often voice his or her opinions or desires during a separate interview with the judge. A parent can file a request for such an interview or the court can request it. During the interview, attorneys for each party can provide questions to be asked by the judge. The interview is then recorded and documented in a court transcript.

In other cases, the court can appoint a guardian ad litem to represent the best interests of the child. The guardian ad litem can speak with the child to understand his or her needs and desires and communicate such sentiments during child custody proceedings. Our New Jersey divorce attorneys have particular experience with child custody, with several who have served as court-appointed guardians ad litem and parent coordinators during high conflict divorce cases. For a free consultation with one of our highly knowledgeable family lawyers, contact us today at 973-840-8970.