Divorcing parents often ask whether a judge listen to a child’s preference in a custody dispute. The answer is maybe – it depends on many factors, including the age of the child.

A Child’s Preference is One of the Statutory Factors Used to Determine Custody

In determining an award of custody, a judge must consider the factors set forth in N.J.S.A 9:2-4, which provides that:

In making an award of custody, the court shall consider but not be limited to the following factor:  the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children.

Court Rule 5:8-6: Trial of Custody Issue

Court Rule 5:8-6 requires a plenary hearing where the Court finds that custody of children is a “genuine and substantial” issue. As part of the hearing, the court may, on its own motion or at the request of a party, conduct an interview with the children. “May” is the key word as the Rule leaves the final decision whether to interview a child in a contested custody case to the discretion of the trial judge, to be guided by the best interests of the child standard.  In the absence of good cause, the decision to conduct an interview shall be made before trial. If the judge decides not to conduct an interview, he or she must place the reasons on the record.

Cases Addressing A Child’s Preference in Contested Custody Matters

In Beck v. Beck, the Supreme Court of New Jersey held that in custody determinations, the preference of children of “sufficient age and capacity” must be accorded “due weight.” In that case, the parties were granted joint legal and physical custody of their two children, although neither party requested joint custody. The trial court nonetheless found joint legal and physical custody to be in the best interest of the children. The mother appealed and the Appellate Division reversed and remanded. The children were eight and ten years old at the time of trial. The trial court interviewed them privately, concluding that they had been persuaded to state their preference and that the mother’s negative attitude toward joint custody had “consciously or unconsciously spilled over” to the children. The Supreme Court found that based on the trial judge’s finding, combined with the ages of the children, a determination that did not fully accommodate the children’s express wishes for custody to be awarded to their mother was not unreasonable. The Supreme Court concluded that the trial court had correctly taken the children’s preferences into account in making its decision.

In Mackowski v. Mackowski, the Appellate Division held that a 16-year-old child’s preference to live with one parent constituted a prima facie showing of a change in circumstances, warranting a review of custody. The panel held that in order to properly assess the child’s ability to participate in the decision-making process, the Court could not rely on affidavits or letters.  Rather, a hearing was required because the child has a statutory right to be heard by the decision-maker if he or she is of “sufficient age and capacity to reason so as to form an intelligent decision.”

Best Interests of the Child Standard

The best interests of the child standard is used in custody decisions. While a child may have a strong opinion about what he wants, the Court will evaluate the circumstances to determine the “due weight” to be accorded to the child’s wishes. The preference of an older child may be given greater weight than the preference of a younger child.

Importance of Ascertaining the Reasons a Child Wants a Change in Custody

There are a multitude of reasons why a child may want to live with one parent rather than the other. Sometimes as a child reaches adolescence, he or she wants to live with the parent of their same gender. In some cases, living with one parent would allow a child to attend school in a better district or allow more contact with other family members.

If the Parent of Primary Residence plans to relocate out of state, the child may want to stay in New Jersey with his or her other parent. A child’s desire to live with one parent rather than the other can also arise when a parent enters another relationship, especially if the new person moves into the home where the child is living.

The determination whether the child should be interviewed becomes especially sensitive in such circumstances. A Court may find it useful to interview a child in those circumstances where a desire to live with one parent is requested in reaction to a change in life circumstances. Nothing is permanent and six months down the road, the other parent may accept an out of state job offer or enter another relationship.

An important part of N.J.S.A 9:2-4 states that a court “shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.” Before asking a Court to decide where their child will live, the parents try to reach a custody arrangement between themselves, with the guidance and advice of their attorneys.