What kind of lawyers would we be if we didn’t say: it depends.
Unfortunately, in this instance, the “it depends” goes even deeper than our typical noncommittal lawyer answer. The reason for this is that it is simply so new. The changes to the custody statute were pushed through, over the objections of many experts and stakeholders; it was thus minimally vetted and has not been tried or tested in practice.
What’s different? Mostly the focus and priorities. That is, there is not much that is truly new, but priorities have shifted. The expressed preference of a child was in the old statute, but the new statute highlights this element as a paramount consideration in a contested case. The continuous relationship between a child and both parents was previously a priority; now it is included, but not emphasized. The previous consideration of domestic violence and abuse of the child at issue now includes abuse of any sibling; one of the few universally applauded changes that appears in the new statute.
The safety of the child is now a major stated priority. But is that really new? No. Under the prior statute, no one expected a Judge in New Jersey not to consider the safety of a child in making custody decisions. There are plenty of laws designed to protect children and mechanisms within the process designed to ensure safety. It is unclear what problem this paramount focus on “child safety” was designed to solve for.
Another massive and really concerning shift is what can only be described as an anti-therapy position of this statute. The legislature has made it not only very difficult to impose mental health services for a parent and/or child over one parent’s objection. We have often sought counseling for a child and, if faced with an objection, responded simply, “Why would this parent object to a child receiving support from a mental health professional?” Therapy is often an obvious (though not necessarily simple) tool to help children. Considering the new paramount focus on a child’s safety, the massive hurdles now in place to secure Court-Ordered therapy are puzzling. The most confusing piece is that where the new requirements are outlined, they are presented as being about any therapy, yet they seem targeted specifically at reunification therapy. Unfortunately, it is simply very unclear and confusing.As attorneys, our hope is that parents will continue to recognize the value of providing children the safe outlet and resource that therapy provides and agree that children benefit from this. Nothing in the statute prevents parents from signing their children up for counseling.
There is plenty we still do not know about how the new statute will be interpreted. The consensus seems to be that a parent cannot just come to Court alleging a child has expressed a preference to secure or change a schedule. How do we know the child’s preference, then? That’s a great question. Many more cases will now likely require a Guardian Ad Litem or independent counsel for child(ren); this involves additional fees that will present a challenge for many families.
Of course, every situation is unique, so the application of the new statute is somewhat unpredictable, but it can also vary based on the situation. Our attorneys are staying up to date on developments about the new custody statute and can help answer questions and guide clients facing disputes.