Does the Child Determine Which Parent to Live With?

If you are getting a divorce in New Jersey and child custody is an issue, the court may or may not choose to interview your child. The purpose of such an interview is to help determine the best custody arrangement.

In New Jersey, as in other states, the best interest of the child is always the primary consideration when a court decides on custody. No law requires a court to honor the wishes of a minor child regarding a custody arrangement.

Generally, courts in New Jersey will give greater weight to the wishes of a child nearing the age of majority than to a much younger child. However, a court is not obligated to give any particular weight to a minor child's expressed preferences.

We Live in New Jersey and are Getting a Divorce… Can Our Child Decide Which Parent to Live with?

New Jersey judges seek to make the best custody arrangement possible, often with input from the affected child. New Jersey Court Rule 5:8-6 allows judges to interview the child or children involved when custody is at issue in a divorce action. The parties may also request that the court conduct such an interview.

Under the Rule, the child must be interviewed by the judge in chambers, outside the presence of the parties and their attorneys. The parties may submit questions they would like the child to answer, though the judge has the authority to decline to ask any or all of those questions.

If the judge declines to ask any submitted questions, the Rule requires a written explanation for doing so.

Interestingly, some New Jersey judges consider judicial interviews of children in custody disputes to be unavoidably harmful. In an appeals opinion in Mackowski v. Mackowski, Judge Kestin suggested that an interviewed child would inevitably believe their answers decided the custody arrangement. This could cause the child to feel responsible and burdened with guilt.

Judge Kestin further argued that if such interviews are to be conducted, they should be handled by suitably trained professionals. Judges, by and large, lack specialized psychological training and, without exception, hold the authority that ultimately decides the custody arrangement.

The Law on Judicial Interviews as it Stands Now

New Jersey Court Rule 5:8-6 remains in effect and continues to permit judicial interviews of children in custody matters. Judges who share Judge Kestin's concerns may, pursuant to a provision of the Rule, decline to conduct such interviews.

Contact a Child Custody Attorney at Villani & DeLuca

If you have questions regarding child custody or divorce, contact the experienced family law attorneys at Villani & DeLuca, P.C. for a free initial consultation.

Call today at (732) 709-7757.