Does My Child Get to Decide Which Parent They Want to Live With?
Child custody cases are some of the most difficult and contentious cases that I deal with as a family law attorney. Parents often want to know how much weight their child’s preference will be given in making custody determinations and at what age the Court will speak to their child. It is important for parents in custody disputes to understand that a child’s preference is one of a number of factors that the Court considers in making custody determinations but regardless of age usually is not the only or controlling factor. Furthermore, a child cannot absolutely decide which parent to live with until they reach age of majority (age 18).
In making an award of custody, the court considers a number of factors which includes among them “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” N.J.S.A. 9:2-4. The other statutory factors include:
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. Id.
New Jersey Court Rule 5:8-6 states that “as a part of a custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record.” If the court interviews a child, counsel is permitted the opportunity to submit questions for the court’s use during the interview. In New Jersey a child must be at least seven years old for the court to conduct an interview at the request of a litigant. Mackowski v. Mackowski 371 N.J. Super 8 (App. Div 1998)
The age of the child has a great deal to do with the weight attached to his or her preference. However, there is no fixed age that determines the weight given to the child’s choice- this is determined on a case by case basis. There are several cases in New Jersey where a 12 year old child’s preference was given weight by the Court. (See Palermo v Palermo and Deane v Deane).
However, one thing is very clear, New Jersey Courts are strongly against parents involving children in divorce litigation and often many custody orders include provisions that require that the parties refrain from discussing the divorce with children. Further, New Jersey family courts often attempts to avoid the involvement of children in court proceedings by requiring parties to utilize custody and parenting time experts who are mental health experts trained to interview children.
If you are in the middle of a contested custody case or have concerns about your child’s involvement in your divorce contact our office to schedule a consultation with Georgia Fraser, Esq, an experienced and knowledgeable family law attorney. You may contact us online or call us at 609-223-2099.