A Change in Direction for Public Policy: What the Amendments to N.J.S.A. 9:2-4 Mean for the Future of Custody Litigation
During my time as a law clerk, I can remember hearing from Judges and Attorneys alike that, “it is important for a child whose parents are going through divorce or separation, to be able to spend time with each parent.” In many ways, it was presented that the child’s best interest would best be served if both parents were in their life, in a significant, though not always equal amount of time. Similarly, it was a longstanding public policy position of the New Jersey Legislature that “a minor child have frequented and continuing contact with both parents.”
With the enactment of the new amendments to N.J.S.A. 9:2-4, those public policy winds have seemingly changed direction. No more are the guarantees to parents that a minor child will spend ample time, or time at all, with each parent during a divorce or separation proceeding. In its place, the focus is now centered around the minor child’s safety, with the Legislature stating in one of its new public policy declarations that “judicial decisions regarding custody of, and access to, children shall promote the safety of children as a threshold issue.”
Most notably within the new amendments, is the onus the new language seems to put on the courts, while at the same time not supplying much guidance for implementing the new principles. Particularly glaring is the language that applies to custody arrangements ordered by the court, which state that “If the court orders any custody arrangement contrary to the expressed preferences of the child, the court shall specifically place on the record the factors which justify the arrangement and which justify the court’s decision to disregard the child’s expressed preferences.”
While there should certainly be no opposition to a court placing its reasons for a decision on the record, so as to preserve and create a clean and substantial record, the language above leaves much to ambiguity. First and foremost, the language fails to specify any age for the minor child in this particular situation. This ambiguity leads to the question of “Does this provision require a court to place on the record its reasoning every time a minor child expresses disagreement with the ordered custody arrangement, regardless of the age of the child?”
Continuing further through the amendments, we arrive at the new provisions that apply to the court ordering any type of therapy. Particularly interesting is a portion of one of the factors a court may consider in its determination of good cause to order therapy. Said portion reads that, “…A child deemed to be of sufficient age and expressing a desire to speak to the court shall be granted an audience off the record and in private chambers.” While less ambiguous than the previous provision spoken about above, this language again puts much of the onus on the court. Previously, at least from my personal experience, child interviews while important in some custody cases, were at the discretion of the Court to conduct. This held true even if the minor child was, as the provision states above, “sufficient age.” With the new proposed language it appears that if a child is of sufficient age and desires to speak with the court, the interview must be granted by the Court.
Some final notes on the new amendments to N.J.S.A. 9:2-4, are that I feel the benefits of such changes may not be realized immediately. Similarly, the consequences of such changes may not have been foreseen by the Legislature. The new provisions, as mentioned previously, seem to put much onus on the Court, and with limited guidance in the language of the amendments, the courts will be left to their own tools to effectuate the intended purpose of these amendments. Whether this will lead to an increase in litigation in custody battles or an increase in backlogged cases remains to be seen.
Written by Carver Martinez, Esq.