In most New Jersey child custody situations, the non-custodial parent (also know as the “Parent of Alternative Residence”) enjoys parenting time. Typically I have found as a child custody and divorce lawyer that the only time that the non-custodial parent does not have parenting time is when it would not be in the best interests of the child. Usually, this means that the non-custodial parent suffers from a substance abuse problem or has a history of gross negligence of the child when in their care.

A common issue I confront as a family law attorney is at what age may a child’s lack of a desire to visit with their non-custodial be conclusive in a New Jersey Family Court. The “rule of thumb” amongst my fellow family law attorneys here in New Jersey is when the child is fourteen (14) years of age. However, there is not a child custody law which affirmatively states this reality that I have come to understand after 20 years of being as a practicing lawyer in this field. Therefore, as this is not a “hard and fast rule,” there are times that an even younger child’s wishes may come into play.

Let’s take a look at the case of Deane v. Deane, as an example.

In the case, the parties married in 1993 and divorced in January 2013. Five children were born of the marriage, one in 1994, the next in 2000, and triplets in 2004. Upon the divorce, the parties executed a marital settlement agreement, which addressed custody of and parenting time with the children. Pursuant to the agreement, the parties agreed to share joint legal custody of the children, with the wife as the primary residential parent. Furthermore, the parties agreed to directly schedule parenting time with their 18 year old child and schedule each parent for four overnights on an alternating basis with the triplets.

Additionally, the parties acknowledged that they had not resolved the issue of parenting time with their then 12-year-old daughter. As a result, the parties agreed to let the court intervene if they could not resolve the issue in a subsequent agreement. Accordingly, when the parties first appeared before the court, the judge told them he would talk to the daughter personally “to get a sense and a feel for where she is.” After meeting with the child, the judge suggested to the parties that they implement the same parenting time schedule that was in place for thetriplets—four overnights on an alternating basis.

In September 2012, the wife told her ex-husband that their 12-year old child would no longer participate in any overnight parenting time and that she was old enough to decide for herself. The wife argued that the decision to end overnight visitation was completely the daughter’s because she wanted to stay in her home- town where her friends and extracurricular activities were located instead of traveling to another town.

By April 2013, the parties still could not formally resolve the issue of parenting time for the child. Subsequently, the husband requested that the court intervene by interviewing the child again and making a decision. The child met with the judge in May 2013. The judge believed that the child was an intelligent and mature young lady. He held that the child had clearly indicated her preference to end overnight visitation with her father and that he was “not inclined to order anything other than the current informal arrangement.”

As a result of the judge’s decision, the husband filed a motion for reconsideration. He argued that the court should not allow a young child, only 12 years old, to dictate the parenting time schedule. However, the court disagreed and denied the husband’s motion to reconsider. Angered by the decision, the husband appealed. On appeal, the husband argued that the trial court erred in failing to consider his motion for reconsideration. He alleged that the court failed to consider all of the statutory factors relevant to a court’s establishment of a parenting time schedule when it made its determination to allow the child to have the final say.

The Appellate Division looked to all of the statutory factors that a court must consider when determining the best interest of a child in custody or parenting time disputes. Pursuant to N.J.S.A. 9:2-4(c), the court must consider the following factors:

  1. The parents’ ability to agree and collaborate on matters related to the child;
  2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time (unless based on abuse);
  3. The relationship of the child with his or her parent;
  4. The history of domestic violence, if any even exists;
  5. The safety of the child;
  6. The preference of the child when “of sufficient age and capacity” to make an intelligent decision;
  7. The needs of the child;
  8. The stability of the environment offered;
  9. The quality and continuity of the child’s education;
  10. The fitness of the parents;
  11. The geographical proximity of the parents’ houses;
  12. The extent and quality of the time spent with the child prior to or after the divorce;
  13. The parents’ employment responsibilities; and
  14. The age and number of children.

As the trial court failed to consider all fourteen of the statutory factors, the Appellate Division reversed and remanded for further proceedings. However, the fact that such a young child’s wishes were given such great discretion in this case tells me that the “rule of thumb” of 14 years of age may be changing.

As the attorneys at my office are always monitoring any news trends in the law, please continueto watch my web site and blog for updates. Of course, for more information please never hesitate to contact my office.