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Child Preference in NJ Custody Cases: What You Need to Know

It’s an issue raised by both mothers and fathers. Child preference in NJ custody cases concerns many parents.  That said, it helps to understand how the court views what children have to say when it comes to parenting plans.

First, the most obvious. Like other states, New Jersey law emphasizes the  best interests of the children in making custody and parenting time decisions. Do children really know what’s best for them? Or, is it more of a case of knowing what they want?

Meanwhile, consider another important issue. Unfortunately, some parents use their children as pawns in divorce proceedings. Manipulation almost always works against a child’s best interests. And, it could influence the way minors express their preferences about custody and parenting plans.

Wondering at what age a child becomes old enough to have a say in the matter? In New Jersey, the law doesn’t contain specific instructions. However, most  experienced family law attorneys suggest that minors over the age of fourteen should be permitted to address their preferences to the court.

Once again, there is no steadfast rule. Children’s maturity acts as a critical factor in making the determination. Meanwhile, that’s not to say that the court won’t consider the testimony of a younger child. In the end, it still boils down to deciding the best interests of the child.

Court Considered Child Preference

In years past, many referred to the time children spent with non-custodial parents as visitation. However, parents don’t babysit or visit with their own sons and daughters. Therefore, the term “parenting time” more accurately reflects the scheduled time between parents and their children.

Without question, decisions about custody and parenting time represent integral parts. Meanwhile, children may have their own ideas about who they want to live with or whether they want to enjoy spending parenting time with the non-custodial parent.

If this issue hits home for you, you may enjoy reading how the New Jersey Appellate Division ruled in  Deane v. Deane. Although the court decided against publishing the 2015 opinion, it provides some interesting insight.

Jesse and Barbara Deane married in 1993 and had five children together, including a set of triplets. When the court executed their final judgment of divorce on January 13, 2013, it incorporated their  Marital Settlement Agreement (MSA), which bore the same date.

Among other things, the MSA outlined the agreement the parties had come to regarding custody and parenting time. It designated Barbara as the parent of primary residence. By the time the couple divorced, their oldest child had already reached the age of 18. Jesse and Barbara decided to arrange parenting time directly with their first child.

Meanwhile, the parents worked out parenting time concerning the triplets without a problem. Jesse and Barbara agreed to alternate four overnights between themselves. That said, the couple admitted they had difficulties resolving parenting time as it pertained to their twelve-year-old daughter.

Parenting Time Dispute for One of Five Children

The triplets are the Deane’s youngest children. The twelve-year-old falls next in line after the oldest. Notably, the court became aware of parenting time issues involving the child before the divorce ended. Indeed, the MSA specifically addressed the problem and suggested the court might need to resolve it.

You may already know that  custody and parenting time mediation helps parents come to agreements in situations such as this one. Jesse and Barbara met with a parenting time mediator, who suggested that they alternate four consecutive overnights with their children.

The parties initially complied with the mediator’s recommendations. However, after a month, Barbara decided against the plan. Subsequently, Jesse agreed to two modifications to the original proposal. However, Barbara still refused to fulfill the terms of the agreement or follow the mediator’s suggestions.

From all appearances, the issue related solely to a parenting time issue with the couple’s twelve-year-old daughter. In September 2012, Barbara informed Jesse that their daughter would no longer spend overnights with him. Moreover, she advised the child’s father that their daughter “was old enough to decide for herself.”

Jesse brought the matter to court, requesting enforcement of the parenting time agreement. In response, Barbara explained that the child wanted to be with her friends and engage in extra-curricular activities. She had no desire to leave town to visit with her dad.  Additionally, Barbara asked the court to interview the child in person.

Court Met with the Child

As you may recall, the Deanes divorced in January 2013 and left open the issue of parenting time for the twelve-year-old daughter. When it was not resolved by April 2013, Jesse’s attorney wrote to the court and asked that the judge interview the child.

Both parents and their lawyers were present when the court met with the child. The judge noted that the daughter was “charming, intelligent and otherwise (a) wonderful young lady.” Based on the child’s representation that she saw her dad on occasion, the court decided to comply with the informal arrangement.

Although the judge made a ruling on the record, it was never placed in a written court order. Not soon after, the father filed a motion for reconsideration. Although the daughter indicated she saw her father regularly, Jesse said they only had dinner together a couple of times a week. He also saw her briefly when he picked up the other children or coached her basketball team.

Additionally, the father reminded the court that his daughter’s desires represented only part of what constituted her best interests. The statutes cite fourteen issues for consideration in making these types of decisions.  Jesse further argued that “the court should not allow a child of her tender years to dictate the parenting schedule.”

The trial court denied the father’s motion for reconsideration, and he appealed. Ultimately, the Appellate Division agreed that the lower court “did not engage in the required consideration of the statutory factors relating to a determination of a child’s best interest.” The case was reversed and remanded back for further proceedings.

In the meantime, this case provides insight into when children can express their preference in parenting time and custody disputes. It appears up to the court’s discretion.

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Are you involved in a parenting time or custody dispute? The  Law Offices of Sam Stoia can assist you. We do not charge for the first hour of our initial meeting with you.  Give us a call to schedule an appointment.

Child Preference in NJ Custody Cases: What You Need to Know

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