Preferences of the Child

Parents who are parties to a child custody dispute often wonder at what age their child has a say in the custody arrangement. The child custody laws in New Jersey do not give a distinct answer to this question. The only guidance provided by the New Jersey statutes is that judges should look at the child’s age and capacity to make a decision regarding custody arrangements. It is silent as to specifically how old a child must be and how judges should measure a child’s capacity to make such a decision. As a result of this uncertainty, New Jersey attorneys often use the age of 14 as a rule of thumb, but that is yet just another guideline. Judges must make their decisions based on the particular facts of a given case. Once the court has decided that the child meets the demands of the statute, the analysis regarding custody is not over. The child’s preference is not supreme in drafting a child custody order. It is but one factor of many that courts must consider. The 2013 New Jersey custody case Deane v. Deane makes this clear. In Deane, the court noted that the lower court failed to consider all of the factors listed in custody statute. There are 14 factors specifically listed, of which the child’s preference is only one. In addition to the child’s opinion, if and when appropriate, the court also must consider factors such as, the parents’ ability to co-parent and cooperate with each other, the parents’ prior track record in sharing parenting time, the safety of the child with either parent, and the stability of each household. In addition to the 14 factors, the statute also allows the court to contemplate other factors that it deems pertinent.

Child custody laws in New Jersey emphasize the public policy of assuring that both of the parents are in the life of the child and that they share in the care of the child. In the Deane case, the child whose custody was at issue was 12 years of age at the time the child was interviewed by the lower court. That is 2 years younger than the 14 years of age “rule of thumb” used by many New Jersey attorneys. It is worth emphasizing again that the appellate court reversed the lower court’s custody ruling because the custody arrangement was based solely on the child’s preference. In other words, the lower court’s decision was not reversed because the court considered the opinion of a 12 year old child. It was reversed because the child’s preference was the only factor of the 14 statutory factors that the lower court considered in determining the custody award. So it may then be possible that a child as young as 12 will be given some sort of say in the custody case if the judge believes that the child is capable of making such a decision.

Given the public policy of encouraging both parents to be involved in a child’s life, as mentioned in the child custody laws in New Jersey, it makes sense that the other 13 factors be given as much weight as the child’s preference. After all, children have been known to act against their best interests, if they even know what they are in the first place. Also, there are many outside influences that could sway a child, that should not come in to play when making a child custody decision. A common example would be a parent who may be pressuring the child to make a particular decision or state a particular opinion, albeit unintentionally. In that case, the opinion given by the child is inaccurate and unreliable.

There are cases in which a child may benefit from testifying, speaking with the judge in chambers, or otherwise having a direct voice in a case. However, these kinds of interactions can be very intimidating to children and adults alike. Although child custody laws in New Jersey provide that children can testify in open court, such testimony is very rare. Judges are reluctant to have a child testify or to speak with a child due to the psychological impact that such an event may have on the child. A child may be very reluctant to openly state that he or she wishes to live with one parent over another. Further, the psychological impact to the child may be even more striking if the judge orders a custody arrangement that is at odds with the stated desires of the child.

Besides having the child testify or interviewing the child, a judge can determine what is best for a child through third parties that have had contact with the child. This includes teachers, child care workers, and mental health professionals. The judge can also appoint a guardian ad litem (GAL) to provide guidance in ordering an appropriate custody arrangement. A GAL appointed in a child custody matter is an attorney who advocates for the child’s best interest. This does not mean that he or she is the child’s lawyer in the same way that the parents have lawyers in the case. The GAL speaks with the child, the parents, teachers, and others, and reviews documentation in order to make a recommendation to the judge about child custody and other matters.

An experienced attorney can provide guidance regarding whether and how your child can have a say in the child custody case. If you would like to speak to an experienced attorney about your New Jersey child custody case, you can phone the Peter Van Aulen at 201-845-7400 for a free initial consultation.