Dear Cassie: How does the court resolve a custody dispute?
In determining custody of a child, a court is always controlled by the child’s best interests. New Jersey has a custody statute, N.J.S.A. 9:2-4, which identifies several factors a court shall consider when evaluating what custody arrangements are in a child’s best interests. Those factors are: (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.
In custody disputes, it is not uncommon for the parties to agree to, or for the court to order, a custody evaluation (also sometimes referred to as a “best interests” evaluation). These evaluations are performed by a licensed mental health professional and involve interviews of the parties, children, and collateral contacts (such as extended family, teachers, or doctors), review of records, and psychometric testing of the parties. The custody evaluator makes recommendations for custody and parenting time arrangements based upon his or her expertise in the field.
It is also possible that the court could order the appointment of a guardian ad litem, to investigate the best interests of the child. The guardian ad litem acts as the court’s agent and the “eyes and ears of the court.” In performing his or her task, the guardian is authorized to conduct the investigation he or she deems appropriate, including interviews of the parties, children, and collateral contacts, and review of records. The appointment of a guardian ad litem is not routine, and is usually reserved for particularly high-conflict custody matters.
If the parties are unable to resolve by consent their custody disputes, their matter will proceed to a trial before a judge in their county. The judge will determine the disputed issues in reliance on the factors of our custody statute and the best interests of the child.
If you are dealing with a custody and parenting time dispute, 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.