The concept of best interests of the children actually comes from a United Nations Convention, and it’s applied in all states. Beyond that, many people don’t know what it means. Below is an explanation of the test and how it is used in New Jersey by a child custody lawyer.
Anyone who has been in family court for a custody issue is most assuredly familiar with the term “best interests of the child.” You’ll hear it in practically every custody case there is—whether it’s part of the divorce or an issue that arises later. However, if you would ask five parents to explain the term, you may get five different answers. Many people are left wondering what the best interests test really means.
The truth is there isn’t necessarily one right answer to any question about the best interests test. The standard is meant to be flexible to account for the child’s present and future situation. In other words, it gives the family court judge a tremendous amount of latitude to decide any issue in front of them.
At the outset, you should know the reason behind the best interests test in order to understand how it works. Courts operate in the same manner as they expect parents would. Judges try to take the parents’ wishes and interests out of the equation and put the children first. Ideally, if two parents were on the same page, they would both do this as well. However, in actuality, one or both parents could be thinking about their own wishes or may have different ideas of what is best for the children.
If you’re looking for an exact definition of the best interests test, a divorce lawyer will tell you that you won’t find one. Instead, you’ll find an overarching principle in the place of a legal definition. The principle is that the court will look at every possible decision in terms of how it affects children in their growth and development. Specifically, New Jersey courts will look at “their physical, mental, and emotional well-being.”
States will handle the best interests test in varying ways. Some states may list in their statute the factors that judges should consider as part of the best interests test. New Jersey gives a long list of factors. This means your family lawyer will need to pinpoint what they think the judge may want to know. Some of the factors included in the law are:
The law doesn’t put an individual weight on any of the factors, nor does it specify which ones are more important than others. Moreover, the law also includes a catchall factor that gives the judge even more leeway. Specifically, the law says that the judge’s consideration should “not be limited to” the considerations listed in the law. This means you and your divorce attorney need to be prepared for the judge to consider anything that impacts the best interests of a child.
While a parent’s wishes aren’t dispositive, there is still room to consider the parents’ interests in terms of how it impacts their relationship with the children. The best interests test presumes that having both parents in the children’s lives is the best thing for the children. This analysis is meant to root out arguments that only would act to benefit the parents whether they’re out of spite or some other reason that would make life more difficult for the children.
New Jersey courts want both parents to be able to spend time with their children. They also prefer that children are able to be around their siblings. However, judges also want to know that the parents are each fit and able to work together and agree on matters involving the children. At the very minimum, New Jersey courts want to protect children from situations that can endanger them. Judges view toxic and corrosive relationships between the parents as something that can harm kids.
While the law says that the judge shall consider the listed factors in “making an award of custody,” the court will use the best interests test in all custody actions. This includes the initial determination of custody and any attempt by a parent to modify custody after the divorce is finalized.
For example, if you want to change the custody agreement to get more time with your children, the judge will immediately look to see whether it’s in the best interests of the children. As you can see, there are enough factors in the test that a judge can essentially analyze anything and call it a part of the best interests test since the analysis is so flexible.
Since the test itself is very flexible, it would also follow that judges have a lot of leeway in how they apply the factors and what they consider. Some judges may take the time to evaluate the children’s circumstances over a matter of months. The court may even order the appointment of a custody evaluator to make an assessment and recommendation regarding the children’s best interest.
What the court does in each case is solely up to the judge. Of course, you can expect the court to make an extensive inquiry about the best interests when it initially decides custody. However, in subsequent modification hearings, you may even get as little as a brief hearing to make your case why a court should or shouldn’t grant a motion. You’ll need a family law attorney to hone in on the exact things a judge would find important, perhaps in a very short period of time.
You may choose your own evaluator to write a report for the court, provided that it’s neutral and objective. However, judges are not bound to consider your report. They retain the discretion to make the decision.
Of course, it’s best if both parents are able to work together. This is the ideal situation that’s in the best interests of the children. A successful co-parenting relationship involves compromise on both sides and recognition that conflict between the parents can hurt the children. However, as much as they try, parents cannot always get on the same page. They may even have legitimate disagreements where each parent firmly believes that they’re in the right. Although court hearings should always be avoided if possible, sometimes parents have no choice but to go to court with their family lawyer at their side.
Nonetheless, it’s important to recognize that anything can happen when a judge is applying the best interests test. You might even get different results if different judges were to hear your case given their discretion. As a result, you and your divorce lawyer should first try to settle a dispute without a court hearing.
If you’re involved in a custody matter, contact Jeralyn Lawrence, a New Jersey child custody lawyer at the firm of Lawrence Law, at (908) 645-1000 to set up your initial consultation. We have offices in Watchung and Red Bank, and our family law attorney can meet with you online.
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