Pursuant to N.J.S.A. 9:2-4 the court must consider all of the enumerated factors however the list is not exclusive and courts may consider additional relevant factors. The 14 enumerated factors are as follows: (1) the parents’ ability to agree, communicate and cooperate regarding the child;(2) the parents’ willingness to accept custody and any history of unjustified withholding; (3) the interaction and relationship of the child with the parents and other siblings; (4) history of domestic violence; (5) safety of the child and/or either parent from physical abuse by other parent; (6) preference of child of sufficient age and capacity; (7) needs of the child; (8) stability of home environment; (9) quality and continuity of child’s education; (10) fitness of parents; (11) geographical proximity of parents’ homes; (12) extent and quality of time spent with child both before and after separation; (13) parents’ employment responsibilities; and (14) age and number of children.
DETERMINING THE BEST INTEREST OF THE CHILD
Most states use the best interest analysis when it comes to making a custody determination. Many of the factors overlap state to state and focus on the care, safety and quality of relationships of the parties involved and the children. The ultimate goal is to ensure meaningful continued contact with both parents. The court encourages custody arrangements by agreement of both parents and will approve an agreed custody arrangement as a court order so long as it is not contrary to the best interests of the child. In the absence of an agreement, each parent may be ordered to submit a custody plan for the court’s consideration in awarding custody. The court must explain their review of the factors when coming to a decision on any custody arrangement.
There are an additional eight factors to be considered if a grandparent is asserting custody rights in New Jersey. N.J.S.A. 9:2-7.1 requires grandparents to prove that visitation is “in the best interests of the child.” In determining whether visitation is in the best interests of the child, the statute directs the court to consider, among other factors, the relationship between the grandparents and the child, the relationship between the grandparents and the child’s parents, and the good faith of the parties.
The New Jersey courts have limited jurisdiction over claims by grandparents against parents regarding their children. The court cannot overrule the decision of a parent to deny grandparent visitation merely because it believes that visitation is the right thing to do. Instead, the court cannot intervene and undermine the parental authority and privacy the law affords to the parents unless failure to order visitation would result in a specific identifiable harm to the child. The grandparent has the burden of proof to establish by a preponderance of the evidence that harm to the child would occur in the absence of court-mandated visitation. The courts, as a matter of procedure, must allow grandparents and their attorneys the opportunity for a full hearing to attempt to meet this burden.