CHILD'S PREFERENCE IN CUSTODY DECISIONS

A parent holds the hand of a small child

Child custody is typically the most essential and central issue in any divorce with children. Parents who have never been married are equally concerned with obtaining a custody order that benefits their children. It is no surprise that parents often want to know at what age a child can make the decision of where he or she lives. The simplest answer to this question is when the child is no longer a child, i.e. when the child turns eighteen years old. Despite this, New Jersey child custody laws make specific provisions allowing a child under the age of eighteen to voice his or her opinion to a trial court judge as to where he or she would like to reside.

All child custody determinations are made by the judge by examining a list of factors as to what is in the child’s best interest. A child’s preference is one of these factors. If a child is of sufficient maturity, then a trial judge is required to take that child’s preference into account. A child’s age is not an automatic indicator of whether a child is mature enough to weigh the options and express an educated preference. A trial court must make an individual assessment on a case by case basis to determine if a child can reasonably express a preference as to where he or she would like to reside. That said, if a child is under the age of twelve, courts will typically give that child’s preference much less weight than that of an older child. The closer a child is to eighteen, the more likely a judge will be to give the opinion more weight.

It is also important to note that just because a child expresses an opinion, that is only one factor in a long list of factors to be considered by a judge in making a best interest determination. A judge may weigh a child’s opinion or preference and still reject it after considering all of the other factors. Ultimately a judge must create a custody order that serves the best interest of the child, and if the judge decides that a child’s preference would not be in the child’s best interest, then the judge is free to reject the child’s request to reside with one particular parent.

If you have questions about whether your child will be permitted to express a preference in a custody case, we can help. Contact us today at (732) 479-4711, and we can review your case with you and discuss your particular child’s wishes and how to move your case to the next step.

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