Best Interests, not preferences, guide custody decisions.

When trying to resolve custody and parenting time disputes in a NJ divorce, it is important to remember that the ultimate decision will be based on what is in the child’s best interests.  I often hear that one party is asking for a particular arrangement or to change an existing order because the child has expressed a desire for the a change.  This presents an awkward situation.  Under NJ law, the preferences of the child may be considered but are not determinative.  In my view, it is seldom a good idea to insert the children into the proceedings.  Doing so exposes them to the conflict and can lead to confusing and disappointing results.  Children may not fully understand how or why their stated preferences were seemingly ignored.  As the case below highlights, the preferences of the child are not enough to implement a change.


FAMILY LAW 20-2-2205 Brucia v. Gamble, App. Div. (per curiam) (3 pp.) On defendant’s appeal of the denial of his motion to modify the provision in the parties’ Property Settlement Agreement setting a parenting time schedule, the panel affirms, finding that, where the PSA contemplated custody once the child started school and provided a parenting time schedule that reflected the child’s school activities, defendant’s assertion that the child expressed a desire to spend more time with his father was not sufficient to make a prima facie showing of changed circumstances warranting modification of the PSA’s parenting time provision and also failed to show that the prevailing provision is not now in the child’s best interests.

About Sandy Durst

Sandy Durst, Esq., is the founding partner of The Durst Firm where he heads the Family Law Department. Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter. Each case is given the personalized attention it deserves.
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