Changes in a Child’s Best Interest in Hackensack

Have you ever heard of “the tender years” benchmark for court cases with regards to divorce, and question of child custody? Probably not, as this standard was predominantly used in the early 20th  century and presumed the now antiquated notion that children were usually best off with their mothers.

Nowadays the standard the court uses is in the best interest of the child, which posits that the best interest of the child shall be the primary consideration and guiding principal. This benchmark is what the court considers as a baseline in determining physical and legal Child Custody, and other aspects— Child Support, for instance— pertaining to children and their financial considerations within the divorce process.

While there is more than one idea of how this standard came to be, Article 3 of the United Nations Convention on the Rights of the Child states, “… in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Additionally, it is also a concept that is believed to have emerged through American adoption laws in the mid-1800’s.

A variety of factors make-up the court’s determination of in the best interest of the child, including but not limited to:

• The parents’ ability to agree and communicate
• The parents’ willingness to accept custody
• Any history of unwillingness to allow parenting time not based on substantiated abuse
• Any history of domestic violence
• The fitness of the parents
• The parents’ employment responsibilities
• The extent and quality of the time spent with the child

And a host of other factors.

In fact, we have an entire webpage devoted to Determining the Best Interest of the Child.

What Changes To This Standard Have Occurred In New Jersey?

In 2024 the New Jersey Legislature revised section 9:2-4, pertaining to child custody and the rights of both parents, stating, “… it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage…,” continuing on to say, “…  that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy.”

So, clearly, New Jersey courts believe it to be in the best interest of the child if the child has a familial bond with both parents. We’re a long way from “the tender years” theory of mothering used years ago, and the views of the court often do elevate fathers to equal footing. Often the court will try to effectuate joint custody, known as 50%/50% custody, whenever possible.

The court takes pains in this revised statute to further say, “The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.”

Does that mean that sole physical or legal custody is impossible? No, of course not. For the reasons mentioned above, and more (perhaps one co-parents works, and the other doesn’t; perhaps one co-parent elects to move to a different state). It simply means that, when possible, the court believes joint custody to be in the best interest of the child.

Have questions about child custody, divorce, and what might be in the best interest for your child? Schedule a consultation with a family law attorney from O’Cathain Law Group Family Law Department today.