How is child custody decided in New Jersey?

New Jersey child custody is governed by N.J.S.A. 9:2-4 (the 'Custody Statute').

1. Public Policy — Frequent Contact / Joint Custody Encouraged

N.J.S.A. 9:2-4 declares: 'In any proceeding involving the custody of a minor child, the rights of both parents shall be equal,' and the policy is to assure 'minor children of frequent and continuing contact with both parents.' The court may award:

Joint custody — joint legal and joint physical.

Sole custody to one parent with appropriate parenting time.

Any other custody arrangement the court determines to be in the best interest of the child.

2. Best Interest Factors — 14 Listed (N.J.S.A. 9:2-4(c))

Parents' ability to agree, communicate and cooperate.

Parents' willingness to accept custody and any history of unwillingness to allow parenting time.

Interaction and relationship of the child with parents and siblings.

History of domestic violence, if any.

Safety of the child and safety of either parent from physical abuse.

Preference of the child when of sufficient age and capacity.

Needs of the child.

Stability of the home environment offered.

Quality and continuity of the child's education.

Fitness of the parents.

Geographical proximity of the parents' homes.

Extent and quality of the time spent with the child prior to or subsequent to the separation.

Parents' employment responsibilities.

Age and number of the children.

A parent shall not be deemed unfit unless the parent's conduct has a substantial adverse effect on the child.

3. Child's Preference

Factor 6 — no specific age. NJ courts consider the preferences of children of sufficient age (typically 12+) and capacity. The court may interview the child in chambers (R. 5:8-6).

4. Custody and Parenting Time Mediation (R. 1:40-5)

NJ courts require mediation of custody and parenting time disputes prior to trial unless a party shows good cause to be excused (e.g., domestic violence).

5. Custody Evaluation

Courts may order a custody evaluation by a court-appointed mental health expert under R. 5:3-3.

6. Modification

Under Hand v. Hand, 391 N.J. Super. 102 (App. Div. 2007), the moving party must demonstrate a change in circumstances warranting modification since the prior order, then the court applies best interest factors.

7. Removal from New Jersey (N.J.S.A. 9:2-2)

Children of divorced or separated parents who are NJ residents shall not be removed out of New Jersey without the consent of both parents, or by leave of court. Bisbing v. Bisbing, 230 N.J. 309 (2017) overruled Baures v. Lewis — relocation requests are now decided under the best interest of the child standard, not the prior 'good faith' test for the primary custodial parent.

8. Domestic Violence Considerations

The Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.) significantly impacts custody. A court entering a final restraining order may make temporary custody/parenting time orders.

This is legal information, not legal advice.