Children Can Share Their Preference But Cannot Choose Where to Live
While it is important for children to have a voice in custody matters, their preferences are not determinative. In New Jersey, the court's primary concern is the child's best interests, which may not always align with their wishes.
Are There Age Restrictions?
No, a child can weigh in on who they wish to have physical custody regardless of their age. However, the child must be of “sufficient age and capacity to reason so as to form an intelligent decision” (see New Jersey Revised Statutes § 9:2-4).
Determining Sufficient Age & Capacity
Currently, there is no legal definition of what sufficient age and capacity are. Whether a child will be allowed to share their preference based on this standard is decided on a case-by-case basis and considers the following factors:
- The child’s age. While there are no age restrictions, younger children are sometimes less able to clearly express their opinions or understand the gravity of what they are being asked.
- The child’s maturity level. The court may consider a child's emotional maturity, cognitive development, and ability to understand the implications of custody arrangements.
- The child’s relationship with parents. The child's relationship with each parent can influence their ability to express preferences without undue influence.
- The child’s level of understanding. The court will assess the child's understanding of the custody process, the roles of each parent, and the potential impact of their preference on their own well-being.
To gather information about a child's age, capacity, and preferences, the court may conduct interviews, review psychological evaluations, or consult with experts such as child therapists or psychologists.
Do They Have to Testify in Court?
No, they may be allowed to make a statement in the judge’s chambers. In some cases, the court may ask to review interviews or therapy sessions with the child as a way to determine their preference or the child may be asked to submit a written statement.
What the Court Will Consider: Custody Determinations
New Jersey courts will consider the child’s preference as just one factor. Ultimately, the court will make a decision based on what it believes is in the child's best interest, even if that decision differs from the child's preference. The following factors are also considered when determining the child’s best interest:
- Each parent’s ability to communicate and cooperate with one another in childcare-related matters
- Each parent’s willingness to adhere to the custody schedule and enable their child to have a relationship with the other party
- Each parent’s ability to meet the child’s specific needs
- Each parent’s health and parental fitness
- The stability of each home environment
- The child’s relationship with both parents
- The child’s relationship with siblings or other members of either party’s home
Counsel in Child Custody Cases
William Kirby Law, Family Law Attorneys is backed by decades of experience, and our attorneys have helped countless clients navigate their custody cases. We can help you understand what the court will consider and how you can show that your suggested parenting arrangement is in the best interest of the child.
When you retain our counsel, we want you to trust that your case is in good hands, which is why we take the time to listen to and understand your case goals. We can work tirelessly to help you outline a case approach and assert your legal rights.
Reach out to us online or via phone at (215) 515-9901 and schedule a consultation today.