When divorcing spouses cannot agree on their children’s custody, the divorce process takes longer and gets more complex. During your litigation, the court might order you to participate in mandatory custody mediation or appoint a best interests expert to perform an evaluation and render an opinion.
Custody in New Jersey is governed by N.J.S.A. 9:2-4 custody of child; rights of both parents considered.
The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child-rearing to affect this policy.
In any proceeding involving the custody of a minor child, the rights of both parents shall be equal, and the court shall enter an order which may include:
a. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody, which shall include:
(1) provisions for residential arrangements so that a child shall reside either solely with one parent or with each parent by the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child’s health, education and general welfare.
b. Sole custody to one parent with appropriate parenting time for the noncustodial parent,
c. Any other custody arrangement as the court may determine to be in the child’s best interests.
In making an award of custody, the court shall consider but not be limited to the following factors: the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.
For a good cause and upon its motion, the court may appoint guardian ad litem or an attorney or both to represent the minor child’s interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties to the litigation.
d. The court shall order any custody arrangement agreed to by both parents unless it is contrary to the child’s best interests.
e. In any case in which the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan, which the court shall consider in awarding custody.
f. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents.
It is important to note that a child’s preference may be a consideration. A judge will take into account the child’s age and maturity. An older child with more maturity will be given greater preference. Additionally, when a child has a preference, a judge will consider whether the preferred parent has alienated the other parent or cannot discipline the child.