A divorce is always difficult for both spouses, but when children are involved, it is even harder.
The decision about where the children will live can be the most emotionally charged part of the process. Determining who gets to make that decision—in New Jersey (NJ) or elsewhere—is a complicated one. Allowing the child to participate in deciding who they will live with can help smooth the process, but first we must ask: At what age can a child choose who to live with in NJ?
Who Decides at What Age Can a Child Choose Who to Live with in NJ?
Children are individuals, and divorce will affect each child differently. The ability of a child to participate in deciding where they will live is also different for each.
With this in mind, there is no hard and fast age that a child can choose who to live with in NJ. Instead, like other decisions where the court is involved, the court will make the decision on a case-by-case basis, using some general guidelines.
Child Custody in NJ: the Basics
In any divorce situation involving children, an overarching principle applies: the best interests of the child. Although this is a very general concept, it provides courts with both parameters and great flexibility in making decisions regarding a child’s placement.
Seeking legal custody allows you the right to make important decisions for the child. When a parent has physical custody, the child lives with that parent. This is also known as residential custody. You can seek either legal or physical custody, and it must be specified when you are filing your motion in court.
What Standards Are Applied in a Court’s Decision of Who a Child Lives with in NJ?
In applying the overarching principle of the best interest of the child, the court will consider the following factors in determining who a child lives with in NJ. Notice that one in particular addresses potential input from the child:
- The parent’s ability to agree, communicate, and cooperate in matters related to the child
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantial abuse
- The interaction and relationship of the child with his or her parents and siblings
- The history of domestic violence, if any
- The safety of the child and the safety of either parent from physical abuse by the other parent
- The preference of the child (when of sufficient age and capacity so as to form an intelligent decision)
- The needs of the child
- The stability of the home environment
- The quality and continuity of the child’s education
- The fitness of the parent
- The geographical proximity of the parent’s homes
- The extent and quality of the time spent with the child before and after the separation
- The parent’s employment responsibilities
- And the age and number of the children
Because the question of the best interests of the child is complex, these many factors provide a broad basis for a judge’s consideration. From these factors, the answer to our question is clear: the preference of the child is one factor a court should consider when that child is of sufficient age and capacity to form an intelligent decision.
How Is “Sufficient Age and Capacity” Determined When Deciding at What Age Can a Child Choose Who to Live with in NJ?
“Sufficient age and capacity” has not been defined by law in NJ. Instead, a court has discretion to evaluate each child’s ability to participate in a meaningful way. This means that a child who is 10 may, in some situations, be able to have input into where he or she will live after a divorce. In other cases, again based upon the court’s discretion and determination, an individual child might not have sufficient age and capacity to form an intelligent decision at the age of 15. Either way, this determination is in the discretion of the court and is made after the court has interviewed the child.
Divorce and custody can be emotionally charged experiences for a child. Being required to participate in the legal process, in a courtroom with a judge and attorneys, and the two people in the world who are supposed to love you more than any other will have a lasting impression on any child.
Because of this, many courts are hesitant to involve a child in their decision-making process. This process can, however, be modified to be less stressful for the child, by having an in camera, or private, interview by the judge with the child outside the formal courtroom. This interview allows the judge to apply his or her judgment about whether the child is of sufficient age and capacity to participate.
We Are Fierce Advocates Ready to Help You. Call Today!
If you need help determining what age can a child choose who to live with, or if you want more info on child custody, contact me, Elizabeth Rozin-Golinder, by filling out my contact form or calling (732) 810-0034. Located in East Brunswick, I have years of experience as a NJ child custody attorney, including in Middlesex County and Monmouth County, and I'll use my experience to help you through this difficult time.