How New Jersey Courts Decide Child Custody: The Factors in N.J.S.A. 9:2-4

Quick answer: In New Jersey, child custody is decided by a judge in the Family Part based on the best interests of the child, using the factors listed in N.J.S.A. 9:2-4. The court looks at how well the parents communicate and cooperate, each parent’s relationship with the child, any history of domestic violence, the child’s safety, needs and schooling, the stability of each home and, when the child is old enough, the child’s preference. The rights of both parents are equal. If the parents agree on custody, the court will order that arrangement unless it is contrary to the child’s best interests.

This guide explains the terms, factors and usual steps. It is general information, not legal advice, and the outcome of any custody case depends on its own facts.

What is the difference between legal custody and physical custody?

Legal custody is the authority and responsibility to make major decisions about a child, such as decisions about health, education and general welfare. Physical custody concerns where the child lives and who handles day-to-day care. The New Jersey Supreme Court has said that joint custody has these two parts, and parents can share one without sharing the other.

In Pascale v. Pascale (1995), the Court explained that joint legal custody means both parents share the “authority and responsibility for making ‘major’ decisions regarding the child’s welfare.” Joint physical custody means both parents share responsibility for “minor” day-to-day decisions and each has the child for significant periods of time on a rotating basis. The Court observed at the time that joint legal custody, with physical custody given to one parent, was much more common in New Jersey than a true sharing of physical custody.

Your order should say plainly which kind of custody each parent has. Our child custody and parenting time page explains how we approach these cases.

What custody arrangements can a New Jersey court order?

Under N.J.S.A. 9:2-4, the court can order joint custody, sole custody to one parent with parenting time for the other, or any other arrangement it finds is in the child’s best interests. A joint custody order covers where the child will live and how the parents will consult each other on major decisions about health, education and general welfare.

The statute says the rights of both parents are equal, so neither parent starts ahead. If the parents agree on an arrangement, the court must order it unless it is contrary to the child’s best interests. If they cannot agree, the court may require each parent to submit a custody plan and will consider those plans.

When a judge orders an arrangement the parents did not agree to, the statute requires the judge to place on the record the factors that justify it. For how time with each parent is usually organized, see parenting time schedules in New Jersey.

What factors does a New Jersey court weigh in a custody case?

The court must consider the factors listed in N.J.S.A. 9:2-4, and it is not limited to them. The list covers cooperation between the parents, the child’s relationships, domestic violence, safety, the child’s preference, the child’s needs and schooling, each home’s stability, each parent’s fitness, the distance between homes, work responsibilities, and the number and ages of the children.

Factor in N.J.S.A. 9:2-4	In plain terms
Parents’ ability to agree, communicate and cooperate about the child	Can the parents make decisions together and share information?
Willingness to accept custody, and any history of refusing parenting time not based on substantiated abuse	Will each parent support the child’s time with the other?
The child’s relationship with the parents and siblings	The bonds the child already has
History of domestic violence, if any	Past abuse between the parents
Safety of the child, and of either parent from physical abuse by the other	Present risk to the child or a parent
Preference of the child, when of sufficient age and capacity to reason	What the child wants, weighed by maturity
Needs of the child	Health, emotional and school needs
Stability of the home environment offered	Housing and daily routines
Quality and continuity of the child’s education	Keeping the child in a suitable school
Fitness of the parents	Conduct with a substantial adverse effect on the child
Geographical proximity of the parents’ homes	Distance, school nights and exchanges
Extent and quality of time spent with the child before or after the separation	Who has been doing the parenting
Parents’ employment responsibilities	Work hours, travel and flexibility
Age and number of the children	What fits each child and the family

One caution: this is the core list the Legislature wrote into the statute in 1990 (P.L.1990, c.26), in summary form. The statute can be amended to add factors or change wording, so have a lawyer check the current text before relying on any list, including this one.

Does the child get a say in custody?

Yes, within limits. The child’s preference is one of the statutory factors, and it counts when the child is of sufficient age and capacity to reason so as to form an intelligent decision. The statute does not name an age at which a child decides. The judge weighs the preference together with the other factors, including safety and needs.

For good cause, the court can also appoint a guardian ad litem, an attorney for the child, or both, and it can divide that cost between the parents. How the court hears from a particular child depends on the case, so ask your lawyer what to expect. Do not ask your child to choose between you, and do not coach. Children feel that pressure.

Will we have to go to mediation before a judge decides custody?

Often, yes. In Levine v. Bacon (1998), the New Jersey Supreme Court noted that the court rules required complaints or motions involving a genuine custody or visitation issue to be referred to mediation, and that mediation was available in each vicinage. Mediation lets parents shape their own plan. Disputes that do not settle go back to the judge.

The Court called mediation “a useful tool in resolving custody and visitation matters.” Court rules and programs change, so ask your lawyer or the Family Division how mediation is handled in your case today.

Mediation is not right for every family. If there is a history of domestic violence or a restraining order, tell your lawyer and the court before any session is scheduled. Our guide to TRO vs. FRO restraining orders in New Jersey explains how those orders work.

What should parents prepare before a custody hearing?

Prepare facts that match the factors. Judges decide custody using N.J.S.A. 9:2-4, so organize your information the same way: who has handled school, medical care and daily routines, your work schedule, the distance between homes, how you and the other parent communicate, and any safety concerns. Keep your records dated, accurate and calm in tone.

A useful file includes:

• A calendar of your actual time with the child over recent months, overnights included.
• School records, such as report cards, attendance and any special education plan.
• Medical information, including the pediatrician and appointments you attended.
• Your work schedule and the child care you would use.
• Texts and emails with the other parent about schedules and decisions.
• A proposed custody and parenting time plan.
• Any restraining orders, police reports or earlier court orders.

Custody arrangements can also affect child support, covered in how New Jersey child support is calculated. If either parent may move out of state, read moving out of New Jersey with your child before anyone makes plans.

Why talk to The Legal Assistance Center about child custody in New Jersey

The Legal Assistance Center is led by Danielle Joseph-Key, Esq., its founder and managing attorney. She has been a member of the New Jersey bar since 2001, has more than 25 years of experience, and is a former municipal prosecutor. She handles family law matters, including custody and parenting time, in the New Jersey Superior Court, Chancery Division, Family Part. She meets clients in person at 722 Gaskill Ave in Mt. Ephraim and works with clients virtually across New Jersey.

If you want full representation, the firm offers a free initial 30-minute consultation. If you are handling your own case, the firm’s virtual flat-fee Advice & Counsel sessions start at $59, with no retainer required.

Call (732) 642-5635 to talk to a lawyer about your case.