When making determinations on custody, the court’s main concern is typically the “best interests of the child.” Kinsella v. Kinsella, 150 N.J. 276, 317-18 (1997). What the court finds to be in the best interests of the child, however, may differ from what a parent believes to be in the best interests of their child(ren). As such, it is imperative to know the considerations of the court in making custody determinations to best understand how the court arrives at its decision.
The New Jersey Court considers the following factors when making a custody determination:
- Parents’ ability to agree, communicate and cooperate in matters relating to the child;
- Parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
- Interaction and relationship of the child with its parents and siblings;
- History of domestic violence, if any;
- Safety of the child and the safety of either parent from physical abuse by the other parent;
- Preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
- Needs of the child;
- Stability of the home environment offered;
- Quality and continuity of the child’s education;
- Fitness of the parents;
- Geographical proximity of the parents’ homes;
- Extent and quality of the time spent with the child prior to or subsequent to the separation;
- Parents employment responsibilities; and
- Age and number of children.
(See, N.J.S.A. 9:2-4). In addition to these statutory factors, the court must “consider and articulate why its custody decision is deemed to be in the child’s best interest.” Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). This has further been defined as a paramount judicial responsibility to consider and safeguard “the safety, happiness, physical, mental and moral welfare of the child.” Fantony v. Fantony, 21 N.J. 525, 536 (1956).
While the best interests of the child are the center of these considerations, the New Jersey court prefers joint custody, as it typically believes it to be in the best interest of the child to have a relationship with both parents. (See N.J.S.A. 9:2-4). Because of this, the court will only terminate parental rights in very specific situations, often ones which result in harm to the child. (See N.J.S.A. 30:4C-15.1(a)).
One factor takes into consideration the preference of the child. When evaluating this, either party may request the court interview the child(ren). R. 5:8-6. The child(ren)’s emotional maturity and level of intelligence may be considered when determining whether the child(ren) can form an intelligent decision regarding their custody preferences. D.A. v. R.C., 438 N.J. Super. 431, 458 (App. Div. 2014). While the court may consider what the child(ren) prefer, it will never force them to choose between one parent and the other.
New Jersey, itself, has not set out a Children’s Bill of Rights during divorce, however, New York has. Looking at these rights which are granted to children may help you understand what not to do, both during and after the initial custody determination made by the court.
New York has stated during parental separation, children have the following rights:
- The right not to be asked to “choose sides” between their parents;
- The right not to be told the details of bitter or nasty legal proceedings going on between their parents;
- The right not be told “bad things” about the other parent’s personality or character;
- The right to privacy when talking to either parent on the telephone;
- The right not to be cross-examined by one parent after spending time with the other parent;
- The right not to be asked to be a messenger from one parent to the other;
- The right not to be asked by one parent to tell the other parent untruths;
- The right not to be used as a confidant regarding the legal proceedings between the parties;
- The right to express feelings, whatever those feelings may be;
- The right to choose not to express certain feelings;
- The right to be protected from parental warfare; and
- The right not to be made to feel guilty for loving both parents.
(See https://ww2.nycourts.gov/courts/6jd/tompkins/family/rights.shtml)
At Snyder Sarno D’Aniello Maceri and da Costa, LLC we understand that divorce cases involve a multitude of determinations made by the court, one of the most important being the custody of your child(ren). As such, it is imperative to best position yourself so the court ultimately can decide what best aligns, in practice, with the best interests of your child(ren). As you prepare for your divorce, give us a call and allow us to help you resolve the case with the best outcome for you and your child(ren).
