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How Children’s Preferences Can Affect NJ Child Custody Decisions

Child custody is a contentious issue in many divorces. In New Jersey, courts decide custody matters according to the best interests of the child based on evaluation of a number of factors. In certain cases, the preferences of the child about spending time with either parent may be taken into account.

By state law, the 14 factors a court must consider in determining custody and parenting time include the wishes of a child who is “of sufficient age and capacity to reason so as to form an intelligent decision.” That child’s preferences must be weighed along with other factors, such as the parents’ fitness, the stability of the home environment, the child’s special needs and the past relationship of each parent to the child.

There is no definitive answer to how old a child must be for his or her preferences to be considered in a custody case. Some family law attorneys in New Jersey follow an unwritten rule that a child must have reached the age of 14. However, the preferences of a younger child who is of a sufficient level of maturity can sometimes influence the outcome of judge’s decisions.

In one such case — Deane v. Deane — the court considered the wishes of a 12-year-old child in deciding on a request concerning parenting time. The parents, in a marital settlement agreement made part of their divorce, agreed to joint custody of their five children, with the mother having primary residential custody and the father being allowed parenting time, including overnight visits. However, the agreement expressly did not cover parenting time for the 12-year-old child. That arrangement was left informally between the parents. When the mother stated that the child no longer wanted to visit overnight with her father — preferring to stay where her friends and extracurricular activities were located — the father sought a court order to compel visitation.

The trial judge refused, finding that the child was mature and intelligent enough to have her preferences considered. The father appealed, asserting that the trial court failed to consider all the relevant factors set forth in the child custody statute. The Appellate Division reversed and remanded for that reason. Nevertheless, the Deane case is indicative that a New Jersey trial court has broad discretion to consider a child’s custody and parenting time preferences, as long as other relevant factors are also weighed.

Martone Law Group, LLC provides compassionate counsel in New Jersey child custody cases and in a wide variety of family law matters throughout Camden, Burlington, Gloucester, and Atlantic counties. Call 856-432-4587 or contact us online at our Haddon Heights Office.