In one of his final acts before Mikie Sherrill was sworn in as Governor of New Jersey, Governor Murphy signed S4510/A5761 into law. The act states that it “clarifies procedures in certain contested child custody cases.” In practice, however, the law makes substantial changes to New Jersey’s custody statute, and the full ramifications of those changes will likely take time to emerge.
The new law amends N.J.S.A. 9:2-4, the statute governing custody determinations when parents separate or divorce. The changes begin immediately. The long-standing declaration that it is the public policy of New Jersey to “assure minor children of frequent and continuing contact with both parents” has been removed. In its place, the legislature has issued a series of new public policy declarations.
Those declarations largely center on safety. The statute now opens by stating that “the protection and welfare, both physically and emotionally, of minor children are held paramount.” While the legislature notes that this protection can include continued contact with both parents following separation, there is no longer a public policy that ensures such contact will occur. Similarly, although the statute continues to recognize that it is in the public interest to encourage parents to share the rights and responsibilities of child-rearing, that principle is now expressly limited to circumstances where shared parenting is in the child’s best interests. It affects the child’s protection and welfare.
Safety is emphasized again later in the opening paragraph, where the legislature declares that children’s safety is “of paramount importance and is an integral element of the child’s best interests.” The statute further provides that judicial decisions regarding custody and access to children “shall promote the safety of children as a threshold issue.”
Beyond these policy declarations, the statute also states that custody and parenting-time decisions should be made on a case-by-case basis and that the child’s expressed preferences should be considered. Notably, the legislative findings do not include any qualifiers based on age, capacity or maturity when referencing a child’s preferences. This contrasts with later sections of the statute, which condition consideration of a child’s statements on those very factors, creating uncertainty as to how courts should reconcile these provisions. The legislature reinforces this concept by stating that children’s voices should be considered in contested custody cases.
The amended statute continues to confirm that, in custody proceedings, the rights of both parents remain equal. It also retains the familiar list of factors a court must consider when making a custody determination, though that list has been expanded. Courts must now explicitly consider any history of child abuse, the safety of the child’s siblings, and any input or supporting documentation from a state-licensed mental health professional providing private therapy or services to the child, to the extent permitted by professional licensure. When assessing parental fitness, courts must also consider evaluations administered by court-appointed professionals.
In addition, the law now requires that when a court orders a custody arrangement contrary to the child’s expressed preferences, the court must place on the record the factors justifying both the custody arrangement and the decision to disregard the child’s stated preference.
The most extensive revisions to the statute concern court-ordered therapy in contested custody matters. The legislature declares that any court-ordered therapy or treatment should be scientifically valid and supported by generally accepted proof of safety, effectiveness and therapeutic value. A new subsection addresses therapy in detail, providing that treatment may not be ordered absent a showing of “good cause” and identifying a non-exhaustive list of factors courts must consider in making that determination.
The drafting of this subsection on therapy introduces some uncertainty. Earlier versions of the bill limited these provisions to reunification therapy, but the enacted version appears to apply more broadly to court-ordered therapy generally. At the same time, the statute includes a separate limitation specific to reunification therapy, providing that any treatment program intended to reunite a child with a parent from whom the child is estranged and to whom the child resists or refuses contact may not be ordered absent both the consent of the parties and a determination that the child is of sufficient age.
This overlap creates ambiguity in the factors courts must consider. For example, the first listed factor addresses “the claimed reasons, extent and duration of separation” between a parent and child, which appears most relevant in cases involving estrangement or reunification, even though therapy may be ordered in many circumstances where no such separation exists. That factor also provides that a child deemed of sufficient age who expresses a desire to speak to the court must be granted an audience with the court. Before this statute, court interviews of children were discretionary. Whether such interviews are now mandatory in all cases involving therapy, or only in specific contexts, remains unclear.
Additional uncertainty arises from the statute’s description of how those interviews are to be conducted. It provides that interviews shall be off the record and held in private chambers, and that a record of the conversation shall be sealed. This language appears to conflict with existing court rules governing in-camera interviews of children, which require that a record be made, sealed and ultimately available to the litigants.
Other factors relevant to court-ordered therapy include the child’s age, capacity and maturity; the willingness of each parent and the child to engage in therapy; any conduct alleged by one parent against the other that weighs in favor of or against therapy; the child’s prior therapeutic history; and any history of domestic violence or child abuse, including conduct that placed the child’s health, safety or welfare at substantial risk of harm.
The statute then states that nothing in its provisions should allow specific extreme therapeutic measures, including therapy that cuts off a child from a safe parent, the use of force or threats of force, or the use of undue coercion or isolation from the child’s family, community or other sources of support. It remains unclear whether this language operates as a substantive prohibition, a limitation on court authority or a general statement of legislative concern.
Of additional significance, the statute expressly provides that a court shall not presume that a child’s resistance or reluctance to interact with a parent was caused by the other parent. This provision is likely to have a meaningful impact on cases in which one parent alleges that a child’s refusal to engage in parenting time is due to the other parent’s conduct.
The statute also provides that when there is a history of domestic violence or child abuse, the offending party may not be granted increased custody for the purpose of improving the relationship between the child and that party. Given the frequency with which findings of domestic violence arise in family matters, the scope and application of this provision may have significant implications for future custody and modification proceedings.
Finally, the statute directs the Administrative Office of the Courts, in consultation with the Institute for Families at the Rutgers School of Social Work, to study and report on the impact of these amendments. That report is to be issued no later than January 2029.
These changes are far-reaching, and given the law’s recent enactment, their full effect remains uncertain. This article is intended to provide an overview of the revisions to New Jersey’s custody statute.
