Determining the “Best Interests of the Child”

Factors Used by Courts to Establish Custody and Visitation

Determining the “Best Interests of the Child”In New Jersey, as in all states, courts must consider the “best interests of the child” when making decisions about physical custody and visitation. Courts look at a number of factors when making that assessment, including:

  • The ages of the minor children—Although the presumption is slowly changing, there’s still a strong perception that infants, toddlers, and younger children should be with their mother, particularly when the mother has served as the primary caregiver. Known as the “tender years” doctrine, it’s no longer enforced but still carries influence in many courts.
  • The living situation of each parent—Because of the importance of stability in a minor child’s life, courts look at where each parent lives, how permanent that residence is, and whether it provides for the needs of the child. Often, the result is that the parent who retains the family home is more likely to get physical custody. Conversely, a spouse who’s temporarily living with friends or family is less likely to get custody and may even experience limitations in visitation.
  • The willingness of each parent to cooperate with the other—Judges discourage parents from bringing conflict into the parenting relationship. As a general rule, the more cooperative you are with your ex-spouse, and the less evidence that you’ve spoken negatively about the other parent, or tried to alienate your child’s affection of the other parent, the more likely you’ll get favorable custody or visitation arrangements.
  • The strength of a parent’s bond with the child prior to divorce—If you weren’t very involved before the marriage fell apart, a judge is less likely to require the child to spend time with you, unless you can show a meaningful change of heart.
  • The child’s wishes—Typically, the wishes of the child are considered only if the child is 12 years of age or older.

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