No one can top Curtis' response....
Anecdotally -- I had a matter once with a child who was 17 years 4 months old and wanted to switch from dad's house to mom's. The judge (now in the App Div) scheduled a very quick hearing date (return on OSC) and it came out that mom let the child smoke pot, let the boyfriend sleep over, let her drink beer, etc etc. The judge told the child that in 8 months she could do as she pleased, but not yet and she was to stay put until her birthday. (Saw the dad a couple years later, child had gotten over the desire to move and stayed after she grew up a bit more).
I've also seen judges compel 17 year olds to attend counselling and therapy with a parent; with custodial parent advised that he/she had better be able to make it happen (one judge said "if the child was diabetic and didn't want to take her insulin, would you sat that's okay, too?" -- a quote I've repeated).
Moral of the story is that while age gets you to a hearing, 18 is 18, not 14 (or 17) and the ultimate decision remains a judge's until then.
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Child’s age and preference. A child’s age is relevant to the determination of custody in several ways. At the outset, age is a determinative factor as to the court’s jurisdiction to grant custody, which generally ends when the child reaches the age of majority.
In the context of a best interest analysis, N.J.S. 9:2-4 requires consideration of the desires and preferences of any child who is "of sufficient age and capacity to reason." See Mackowski v. Mackowski, 317 N.J. Super. 8, 12(App. Div. 1998); Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. den. 99 N.J. 243 (1985). And see, e.g., D.A. v. R.C., 438 N.J. Super. 431, 458 (App. Div. 2014) (reversing custody determination that did not take into consideration views of 14-year-old child); Kavrakis v. Kavrakis, 196 N.J. Super. 385, 391-392 (Ch. Div. 1984) (concluding that consent of 14-year-old was "prima facie starting point" with respect to removal case); McKinley v. Naters, 419 N.J. Super. 205, 208 (Ch. Div. 2010) (explaining that a 15-year-old’s position on the issue of relocation in a custody dispute was a "potentially important factor" for the court’s consideration); Lavene v. Lavene, 148 N.J. Super. 267, 271-272 (App. Div.), certif. den. 75 N.J. 28 (1977) (providing that even though an eight-and-one-half year old child "lack[ed] the maturity and judgment to make a dispositive statement of custodial preference," the court ought to consider the child’s wishes along with other relevant factors); Quinn v. Johnson, 247 N.J. Super. 572, 581 (Ch. Div. 1991) (holding that the wishes of an eighteen-year-old were "very important" for the court to consider upon determining his best interests regarding custody); Palermo v. Palermo, 164 N.J. Super. 492, 499 (App. Div. 1978) (considering the preference of a twelve-year-old child in awarding custody to stepmother with whom the child lived); Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952) (considering wishes of six-year-old child); Boerger v. Boerger, 26 N.J. Super. 90, 103 (Ch. Div. 1953) (considering wishes of ten-year-old child); Francisco v. Francisco,73 N.J. Eq. 313, 315-316 (Ch. 1907) (finding children ages fourteen, eleven and nine to be of suitable age to express a preference). Compare Ali v. Ali, 279 N.J. Super. 154, 168 (Ch. Div. 1994) (providing that "a preference in custody cases is given to the parent with the strongest psychological bond with the child").
Generally, the child’s preference is elicited through an in camera judicial interview or the testimony of a mental health expert who has met with the child. See 23:3-6(c). However, the child’s preference is not dispositive and is only to be given "due weight" under the custody statute. See W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989), app. dism’d 121 N.J. 630 (1990); Lavene v. Lavene, 148 N.J. Super. at 271; Sheehan v. Sheehan, 38 N.J. Super. 120, 126 (App. Div. 1955); Giangeruso v. Giangeruso, 310 N.J. Super. 476, 481 (Ch. Div. 1997). See also Mackowski v. Mackowski, 317 N.J. Super. at 12-13 ("The court need not be bound by the child’s view but that cannot be a basis for denying the child the right to express a view if he or she chooses to do so"). Accord, D.A. v. R.C., 438 N.J. Super. at 456-457.
Typically, the weight afforded to a child’s preference is directly proportional to the child’s age. That is, the desires of older children are generally entitled to stronger consideration than that afforded to the wishes of younger children. Lavene v. Lavene, 148 N.J. Super. at 272; Wilke v. Culp, 196 N.J. Super. at 498. See also Mackowski v. Mackowski, 317 N.J. Super. at 13 (implying that the preference of child who was sixteen, "less than two years from majority," was entitled to significant weight); Lavene v. Lavene, 148 N.J. Super. at 274 (noting that a ten-and-one-half year old had a heightened, if not certain, capacity to state a custodial preference); S.M. v. S.J., 143 N.J. Super. 379, 385-386 (Ch. Div. 1976) (granting
custody to the stepfather substantially based on the twelve-year old child’s "strong desire" to live with him instead of her mother); In re De Bois, 7 N.J. Misc. 1029, 1033 (Ch. 1930) (entitling the preference of a seventeen-year-old to "strong consideration"); Schultze v. Schultze, 73 N.J. Eq. 14, 20 (Ch. 1907) (giving great weight to the preference of fifteen-year-old child). Compare Callen v. Gill, 7 N.J. 312, 320 (1951) (rejecting preference on the grounds that "[a] 12-year-old child has not attained that ripened discretion which enables him to determine conclusively what his own welfare demands"); W.W. v. I.M., 231 N.J. Super. at 511 (giving little weight to seven-year-old’s conflicting statements regarding custodial preference). Cf. F.H.U. v. A.C.U., 427 N.J. Super. 354, 388(App. Div. 2012), certif. den. 212 N.J. 198 (2012) and Tahan v. Duquette, 259 N.J. Super. 328, 335 (App. Div. 1992), each concluding that a nine-year-old child was not of appropriate age and maturity to object to the return to the child’s place of "habitual residence" under the Hague Convention.
Moreover, the child’s preference may be greatly discounted regardless of age if it is the result of undue influence or parental conduct designed to alter the child’s opinion. See, e.g., Beck v. Beck, 86 N.J. 480, 501 (1981) (concluding that children had been persuaded to make their statements of preference regarding custody); Sheehan v. Sheehan, 51 N.J. Super. 276, 296 (App. Div.), certif. den. 28 N.J. 147 (1958) (recognizing that the children’s dislike for their father was most likely occasioned by "actual, though perhaps subtle, stimulation by the mother"); Giffin v. Gascoigne, 60 N.J. Eq. 256, 259 (Ch. 1900) (discounting a fourteen-year-old’s custodial preference where relatives did not permit the child to see his father for several months).
Significantly, a child’s age is no longer dispositive as to which parent should be awarded physical custody pursuant to N.J.S. 9:2-4. Pursuant to early statutory law, custody of a child of a very young age, or of "tender years," was presumptively awarded to the child’s mother. See L. 1860, c. 167 (providing that custody of a child under the age of seven should go to the child’s mother, "unless said mother shall be of such character and habits as to render her an improper guardian"). This statutory presumption, known as the "tender years doctrine," embodied the notion that being placed in a mother’s care is ordinarily in a young child’s best interests. See In re Baby M., 109 N.J. 396, 453 n.17 (1988) (briefly discussing the history and application of the tender years doctrine). See also Dixon v. Dixon, 71 N.J. Eq. 281, 282 (E. & A. 1906) (describing the tender years doctrine prior to its abrogation).
For even more nuggets, considering making From Fall and Romanowski, New Jersey Family Law, Child Custody, Protection & Support (GANN) a part of your digitally searchable library. We wrote the treatise and I would never want to be without it. Gann Law Books - Child Custody, Protection & Support - Print/Online
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
Original Message:
Sent: 06-06-2016 06:43
From: Christine Moriarty Brophy
Subject: 14 year old child having say in parenting time-Brief/caselaw?
HI. Does anyone have a brief or case law regarding a 14 year old having a say in parenting time? At this age, his opinion matters. Please write to me directly and off-Community Net. Thanks so much
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Christine Moriarty Brophy Esq
Upper Saddle River NJ
(201)785-1658
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