CHILD’S PREFERENCE IN CUSTODY DECISIONS
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
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
with you and discuss your particular child’s wishes and how to move
your case to the next step.
About the Author
John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.
Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.
