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What about the Kids? - The Best Interests Standard

"The best interest's of the child" determine most issues of custody and visitation. Although the standard is simply defined, proving "best interest" is most difficult and expensive. Opinions from varying sources guide the Court to determine custody and visitation. Once a significant issue of custody is demonstrated the Courts will generally require the parties and children to undergo evaluation by the county Probation Department.

Typically, the probation employee with a Masters of Social Welfare (MSW) will interview all the family members and obtain a history of both parents including but no limited to medical, psychiatric, drug, alcohol, levels of parenting skills, etc. The Probation Social worker will customarily obtain school records of the children which will include grades, attendance, child study team evaluations and other pertinent information. The children, depending upon their age and maturity, will be interviewed of children 7 years or older. The court has discretion to interview children below 7.

The Court must consider the following factors as enumerated in N.J.S.A. 9:2-4:

  • The parents' ability to agree, communicate and cooperate in matters relating to the child.
  • The parents' willingness to accept the custody and any history of unwillingness to allow visitation not based on substantiated abuse.
  • The interaction and relationship of the child with its parents and siblings.
  • The history of domestic violence, if any.
  • The safety of the child and the safety of either parent from physical abuse by the other parent.
  • The presence of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
  • The needs of the child.
  • The stability of the home environment offered.
  • The quality and continuity of the child's education.
  • The fitness of the parents.
  • The geographical proximity of the parents' homes.
  • The extent and quality of the time spent with the child prior to or subsequent to the separation.
  • The parents' employment responsibilities.
  • The age and number of children.


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If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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