Recent Changes to the New Jersey’s Custody Statute

In New Jersey, N.J.S.A. 9:2-4 provides factors the Court is to consider when determining a custody and parenting time arrangement that is in the best interests of the child. The preamble to 9:2-4 expressed the Legislature’s intent that children should have “frequent and continuing contact with both parents after the parents have separated or dissolved their marriage.” Recently, the Legislature significantly amended 9:2-4 to reflect, in part, its recognition “that children should also have their voices considered in contested custody cases”. With this shift comes an emphasis on the expressed preference of a child when determining custody and parenting time in matrimonial matters.  

The Prior Statute

Under the prior statute, “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision” was one of fifteen factors the Court had the discretion to consider when determining parenting time. Depending upon a child’s age, the prior statute afforded the Court the discretion to disregard the expressed preference of the child if the Court deemed the child was too young or lacked sufficient maturity to formulate an opinion.

Amended Statute

Now, the Legislature has found that “children should also have their voices considered in contested custody cases” and directed that a Guardian Ad Litem, who represents a minor child’s interests, shall inform the Court if the child expresses a particular reason for their preference. A child who the Court has deemed to be of sufficient age, capacity, and maturity and expresses a desire to be heard by the Court shall now be afforded the ability to speak with the judge in chambers and off record. If the Court enters a parenting time schedule which is contrary to the expressed preference of the child, the Court is now required to place on the record the factors which justify its decision to disregard the preference of the child.

While only time will tell, these amendments have seemingly necessitated the expression of a child’s preference in contested custody cases, where, in the past, the child may have been shielded from contentious litigation by the Court. A requirement for a child to express their preference, and the heightened deference the Court must afford the same, raises concerns that the new statute will incentivize parents to involve their child in custody and parenting time disputes.

Although the Legislature is seeking to protect a child’s right to be heard, these amendments may serve to force many children to feel they must pick between their parents and rock the foundations set forth in the Children’s Bills of Rights that children should be free from being placed ‘in the middle’.

Our family law attorneys are available should you have any questions about how these amendments may affect your custody and parenting time matter.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.