When parents separate and divorce, they often mutually agree on the custody arrangements. However, when parents cannot come to an agreement, a judge will need to make the determination. Judges are required to consider the “best interests of the child” in making this decision. The best interests standard encompasses many factors—one of which is the child’s own preference.
Although not mandatory, a judge has discretion whether to consider a child’s own custody preference. New Jersey courts will only consider the preferences of children who have the ability to reach a sound judgment. Although a child’s chronological age is one way to determine whether they are sufficiently mature to have legal input, it is not determinative. The judge will make a decision on a case-by-case basis by assessing each child’s maturity and reasoning ability.
Case law roughly suggests that preferences of children over the age of 12 will be given more weight by a judge. However, sometimes, a judge will consider the preference expressed by a very young child. And other times, the stated preference of an older teenager may be disregarded by the court if other factors mitigate against their preference—for example if the preferred custodial parent has a documented substance abuse problem that poses a safety risk to the child.
Perception vs. Reality of Court
Parents often feel uneasy about their child having to testify in court. They may imagine their child on a witness stand, in front of both parents, being forced to answer a judge’s inquiry into “which parent they like better.” However, the truth is, it is extremely rare for a child to take the witness stand. After all, a judge’s concern is the child’s best interest. Putting them on the witness stand is probably not in their best interest.
There are other ways a court can ascertain a child’s preference without putting them on the stand. A parent can request that the Judge interview the child outside of courtroom, perhaps in the judge’s chambers. A court reporter can transcribe the interview if desired. In other situations, judges may appoint what is called a “guardian ad litem” to interview the child and protect the child’s interests. The guardian can then testify in court as to the child’s custodial preference.
Mendham Child Custody Lawyers at Lyons & Associates, P.C. Fight for Parents Seeking Child Custody in New Jersey
Custodial decisions are some of the most important decisions that a court can make. The impact of the court’s decision on the lives of both the children and parents cannot be overstated. In fighting for the custody of your children, you need the brightest, most experienced team of Mendham child custody lawyers on your side. To schedule a consultation with the trusted lawyers at Lyons & Associates, P.C., call us at 908-575-9777 or contact us online today.