One of the most significant changes to New Jersey’s custody statute is the legislature’s elevation of safety to a central role in custody and parenting-time determinations. The amended statute now declares that judicial decisions regarding custody and access to children “shall promote the safety of children as a threshold issue.”
At first glance, this language appears self-evident. The safety of children has always been a core concern in family court. However, by designating safety as a threshold issue, the statute introduces a concept that carries legal significance beyond a general statement of values. In doing so, it raises several practical and procedural questions that the statute itself does not answer.
What the Statute Clearly Requires
The revised statute makes several points clear:
- While “the safety of the child” is still one of the factors a court must consider when making a custody determination, the legislature also declared that safety is a “threshold” issue. By framing safety as a threshold issue, the Legislature appears to signal that custody and parenting-time arrangements should not proceed without attention to whether they adequately protect children from harm.
- Safety is not specifically defined. Instead, language within the statute refers not only to the physical safety of children, but also to their emotional welfare. It further directs courts to consider the safety of siblings and, in certain contexts, the safety of a parent from physical abuse by the other parent.
These directives are unambiguous in their emphasis, even if their application is not.
What the Statute Does Not Say
While the statute clearly elevates safety, it does not define what constitutes a lack of safety for purposes of custody adjudication. It also does not specify how safety is to be evaluated, what evidentiary standard applies or when safety concerns must be resolved relative to other custody issues. In fact, it continues to contain language that courts must also consider the fitness of the parents, which seems to implicate safety, and that a parent “shall not be deemed unfit unless that parent’s conduct has a substantial adverse effect on the child.”
The statute does not distinguish between allegations of unsafe conditions (i.e. claims by one party that are not backed by verifiable evidence) and findings of unsafe conditions (such as determinations by DCPP). It does not indicate whether safety must be formally adjudicated before temporary or interim custody arrangements are entered. Additionally, it is not explained whether safety concerns must rise to a particular level of severity to trigger heightened scrutiny.
As a result, courts are left to determine, on a case-by-case basis, when safety is sufficiently “at issue” to require focused attention and how that attention should be structured.
When is Safety “At Issue”?
The designation of safety as a threshold issue inevitably raises the question of when safety is implicated in a custody dispute.
In some cases, the answer will be straightforward. Allegations of physical abuse, domestic violence or direct threats to a child’s well-being have long been recognized as safety concerns, and the statute reinforces their central importance.
Other cases may be less clear. Because the statute explicitly includes emotional welfare within the concept of safety, courts may be required to consider whether concerns such as anxiety, fear, emotional distress or exposure to high-conflict dynamics implicate safety in a way that must be addressed before making custody or parenting-time decisions.
The statute provides no guidance on where that line should be drawn. As a result, reasonable minds may differ as to whether certain concerns implicate safety as a threshold matter or remain part of a broader best-interests analysis.
Safety and Procedure
By elevating safety to a threshold issue, the statute also raises procedural questions.
Family courts have traditionally resolved custody matters through a combination of motion practice, interim orders, and, where necessary, evidentiary hearings. The statute does not specify how safety determinations are to be made within this existing framework, nor does it indicate whether specific procedures are required when safety is disputed.
In the absence of statutory guidance, courts must balance the need to protect children with the practical realities of family-court proceedings, including time constraints, limited resources, preserving contact between a safe parenting and a child and the need for stability during litigation. How courts strike that balance may vary depending on the circumstances of each case.
Safety and Judicial Discretion
The statute’s emphasis on safety must also be considered alongside its impact on judicial discretion. While the legislature has elevated safety as a guiding principle, it has also imposed new limitations on certain remedial tools that have been available to courts in contested custody cases, particularly in the context of court-ordered therapy.
This combination places courts in a complex position. Judges are tasked with prioritizing safety while operating within a statutory framework that restricts some of the mechanisms historically used to address family conflict and child-parent relationships. How courts navigate these constraints will likely shape the practical application of the statute in the months and years ahead.
The Potential for Inconsistent Application
Where a statute establishes a broad mandate without clear definitions or procedural direction, as with this statute, variability in application is an inevitable risk.
Different courts may reasonably reach different conclusions as to when safety is implicated, how it should be evaluated and what steps are required before custody or parenting-time decisions can proceed. Over time, appellate guidance may be needed to bring greater clarity and consistency to these issues.
An Open Question
The legislature’s intent to prioritize the safety of children is unmistakable, and few would disagree with that goal. But, while the safety of a child has always been a factor the court’s must consider in making a custody determination, the new statute leaves open important questions about how safety is to be identified, evaluated and addressed in contested custody cases.
As courts begin to apply the amended statute, practitioners and families alike will be watching closely to see how these questions are resolved in practice. Future discussion will no doubt focus on how safety as a threshold issue interacts with other aspects of the custody framework, including child preferences, parenting-time disputes and the evolving role of therapeutic intervention.
