Does the Child Determine Which Parent to Live With?

If you are getting a divorce in New Jersey, and child custody will be an issue in that divorce, a court may, or may not, choose to interview your child to help the court determine the best custody arrangement for your child. In New Jersey as in other states, the best interest of the child is always the main consideration when a court decides on custody. There is no law that mandates a court honor the wishes of a minor child with respect to a custody arrangement. Generally speaking, courts in New Jersey adjudicating divorce actions involving child custody will give greater weight to the wishes of a child nearing the age of majority than to a much younger child. A court is not obligated to give any particular weight to a minor child's express wishes with respect to a custody arrangement.

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

Of course, New Jersey judges seek to make the best custody arrangement possible. The judges often craft such an arrangement aided by the input of an affected child. New Jersey Court Rule 5:8-6 allows judges, when they find child custody to be an issue in a divorce action, to interview the child or children involved. The parties to the action may also request the court interview the child or children involved.
The Rule provides that children interviewed pursuant to its authority be interviewed by the judge in the judge's chambers, and outside the company of the parties and their lawyers. The parties may, however, submit questions to the judge that they would like the child or children to answer. Also pursuant to the Rule, the judge may decline to ask the child or children the questions submitted by the parties. In the event the judge declines to ask any or all of the questions submitted by the parties, the judge is required under the Rule to provide a written explanation for doing so.
Interestingly, some New Jersey judges consider a judicial interview of children regarding a custody dispute to be unavoidably harmful. For example, writing over a decade ago in an appeals opinion in a case called Mackowski v. Mackowski, Judge Kestin suggested that the interviewed child would inevitably think that what they told the judge in their interview had decided the custody arrangement, and so the child would be freighted with the guilt that comes with that supposed responsibility. Judge Kestin wrote that if such interviews are to be done, they should be conducted by suitably trained professionals, and not by judges who, by and large, lack any specialized psychological training and who, without exception hold the authority that in fact decides the custody arrangement.

The Law on Judicial Interviews as it Stands Now

For now, New Jersey Court Rule 5: 8-6 is still in effect, and it permits judicial interviews of children. New Jersey judges who share Judge Kestin's view of judicial interviews of children in child custody matters can, pursuant to a provision of the Rule, decline to conduct them.

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. You will be provided with a free initial consultation.  Call them today at (732) 709-7757.