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Custody Factors that a New Jersey Court must Consider

Separation and divorce profoundly impact the time a parent has with their children. The quantity and quality of that time is of prime importance to all of the parties concerned. Custody is one of the most difficult issues facing a separating couple as to who should be given residential custody of a child. When the parents cannot agree on a custody plan, the courts will step in to resolve the custody dispute.

Custody Arrangements

While child custody is extremely important to the parents, it is also important to the government, as they want to promote the well fair of families and children. To that end, the New Jersey Statutes (NJS 9 § 2-4) make it clear that in a proceeding involving the custody of a minor child, the rights of both parents shall be equal. The court will consider both parents when making a custodial decision. They will also consider the best interests of the child and may order a guardian ad litem appointed to protect the interests of the child. The statute provides that a court may:

  1. order joint custody;
  2. order sole custody, but with parenting time for the noncustodial parent; or
  3. order any other arranges the court deems appropriate for the situation.

Factors the Court Considers

There are many factors that a court is charged with considering when making a child custody award. These factors include the following, but bear in mind the court can consider other factors not enumerated by the statute.

  • 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.

A parent will not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child. The best interests of the child are always the primary consideration. (NJS 9 § 2-4a). New Jersey prohibits convicted sex offenders under NJS 2C:14-2 from being award custody or visitation rights (NJS 9 § 2-4.1), but other than that provision, the court will weigh the factors and make a determination in the best interest of the child.

It is always best if the parents can agree upon an arrangement. Generally, a court will order any custody arrangement agreed upon by both parents, but the court will evaluate if the plan is in the best interests of the child. If the parents cannot agree upon a plan, the court may require each parent to submit a plan separately, that the court will consider in awarding custody.


Child custody can be a difficult problem. If the parents cannot agree upon an arrangement, many courts offer the services of a mediator to help parents reach a consensus. If the parents still cannot agree, the court will evaluate the situation and make the decision for the parents and the children. A decision by the court may be difficult to live with, so it is always better if the parents can make every effort to agree to a workable custody plan.

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