Dear Cassie: My daughter is in the process of divorcing. Her two children (aged 11 and 8) are very attached to her, and she is worried the children will be hesitant to go with their father for parenting time, especially on overnights. What are the New Jersey laws about enforcing visitation if children don’t want to go?

Dear C.G.:

New Jersey has a statute, N.J.S.A. 9:2-4, which addresses the issue of custody and parenting time. That statute identifies 14 factors that a court shall consider when determining custody and parenting time. They are as follows:

  1. the parents’ ability to agree, communicate and cooperate in matters relating to the child;
  2. the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  3. the interaction and relationship of the child with its parents and siblings;
  4. the history of domestic violence, if any;
  5. the safety of the child and the safety of either parent from physical abuse by the other parent;
  6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  7. the needs of the child;
  8. the stability of the home environment offered;
  9. the quality and continuity of the child’s education;
  10. the fitness of the parents;
  11. the geographical proximity of the parents’ homes;
  12. the extent and quality of the time spent with the child prior to or subsequent to the separation;
  13. the parents’ employment responsibilities; and
  14. the age and number of the children.

The specific question you raise goes to fitness of the father. Usually, except in cases of unfitness, such as when a parent poses a risk of harm to a child, the court will award both parties overnight parenting time with the child. This position advances the legislative preference for children to be entitled to frequent and continuing contact with both parents. In fact, the custody statute referenced above states, “A parent shall not be deemed unfit unless the parent’s conduct has a substantial adverse effect on the child.” Typically, in cases not involving unfitness, there is an expectation by the courts that each party will encourage the children to have a relationship with the other parent.

There is also the question of a child’s preference. The custody statute identifies a child’s preference as a factor to be considered when establishing custody and parenting time, “when [the child is] of sufficient age and capacity to reason so as to form an intelligent decision.” There is no hard and fast age when a child’s preference will be given consideration, but usually, this factor does not come into play for elementary school-aged children.

As with most topics in family law, the appropriate custody and parenting time arrangements for each family are extremely fact-specific. If you are dealing with the issue of custody and parenting time, you should seek the advice of matrimonial counsel.

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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.