New Jersey recently made important changes to N.J.S.A. 9:2-4, the statute that governs child custody and parenting time. While the law continues to focus on the “best interests of the child,” the amendments clarify how courts are expected to make custody decisions, especially in cases involving safety concerns, disagreements about parenting time, and a child’s own wishes. This overview explains the most meaningful updates in straightforward terms and highlights what parents (or attorneys) should understand if they are involved in a custody dispute. Under the prior version of N.J.S.A. 9:2-4, judges considered a list of factors when deciding custody, including the parents’ ability to cooperate, the child’s needs, any history of domestic violence, and – when appropriate – the child’s preference. The law also emphasized frequent and continuing contact with both parents. Although these principles remain familiar, the earlier statute gave judges broad discretion and limited guidance on how to weigh competing concerns. This sometimes led to confusion or frustration for parents, particularly in cases involving safety issues or disagreements about therapy or parenting arrangements. N.J.S.A. 9:2-4 as amended keeps the same overall framework but hopefully provides a clearer direction to the courts and seemingly greater protections for children involved in a litigated custody matter. Child Safety Comes First The revised law makes clear that a child’s safety is the court’s first priority. Judges must address safety concerns, such as domestic violence, abuse, or risk of harm before turning to questions about parenting schedules or shared custody. For parents, this means that safety-related issues are no longer treated as just one factor among many. They must be meaningfully considered at the outset of the case. Specifically, N.J.S.A. 9:2-4 now provides in relevant part, “The Legislature further finds and declares that it is the public policy of this State to ensure that decisions concerning child custody and parenting time are made on a case-by-case basis and that the expressed preferences of the child are considered. The Legislature recognizes that the safety of children is of paramount importance and is an integral element of the child’s best interests. To that end, the Legislature finds and declares that judicial decisions regarding custody of, and access to, children shall promote the safety of children as a threshold issue. The Legislature also recognizes that children should also have their voices considered in contested custody cases and that any court-ordered therapy or treatment should be scientifically valid and have generally accepted proof of effectiveness and therapeutic value consistent with “Kayden’s Law,” a component of the federal Violence Against Women Act Reauthorization Act of 2022. Furthermore, the statute as amended adds an additional factor for the court to consider in making an award of custody: “the input and supporting documentation of a State licensed mental health professional, if any, providing private therapy or other services to the child to the extent allowed under the professional’s State licensure.” This opens the door for the court to consider reports from the child’s therapist / mental health professional to assist the court in making the proper custody determination in the child, or children’s, best interest. How this may affect the child’s treatment and the parents’ relationship with the child’s therapist / mental health expert knowing that the child’s therapist may be involved in the litigation may be an issue. No One-Size-Fits-All Custody Arrangements While New Jersey law continues to support a child having a relationship with both parents when appropriate, the revised statute emphasizes that custody decisions must be made case by case. Frequent contact with both parents is encouraged only when it truly serves the child’s best interests. This change reinforces that custody outcomes are not automatic and should be tailored to the specific needs of each family. Children’s Voices Matter The updated law strengthens how courts consider a child’s wishes in custody disputes. When a child is old enough and mature enough to express a reasoned preference, the court must consider that preference. If a judge orders a custody arrangement that is contrary to what the child has expressed, the judge must explain the reasons on the record. In appropriate cases, children may also speak privately with the judge (in camera), outside the presence of their parents. This does not place decision-making responsibility on children, but it does ensure their perspectives are taken seriously. Clear Limits on Court-Ordered Therapy Another significant change involves court-ordered therapy, including reunification-type therapy. Under the revised statute N.J.S.A. 9:2-4(e), The court shall not order any therapy unless there is generally accepted and scientifically valid proof of the safety, effectiveness, and therapeutic value of the therapy. The court shall require a showing of good cause that therapy is appropriate prior to ordering such therapy. No treatment program intended to reunite a child with a party from whom that child is estranged and to whom that child resists or refuses contact shall be ordered by the court without the consent of both parties, and upon a determination that the child is of sufficient age. In determining good cause for ordering therapy, the court shall consider, but shall not be limited to, the following factors:
- the claimed reasons, extent, and duration of separation from the perspective of each parent and the child, if the court determines the child to be of sufficient age, capacity, and maturity to express the child’s reasons. A child deemed to be of sufficient age and expressing a desire to speak to the court shall be granted an audience off the record and in private chambers. The record of the conversation shall be sealed. The child may also include letters from a treating State licensed mental health professional to support the child’s capacity and maturity to express the child’s reasons;
- the child’s age, capacity, and maturity level, including whether the child has special needs and whether those special needs affect the child’s capacity and maturity level;
- the willingness of each parent and the child, if the court determines the child to be of sufficient age, capacity, and maturity to express a preference, to engage in scientifically valid therapy;
- any conduct claimed by one parent against the other parent that weighs in favor of or against the implementation of any scientifically valid therapy;
- in compliance with the privacy provisions of the federal Health Insurance Portability and Accountability Act, Pub.L.104-191 8 (HIPAA), a summary of the history of therapy in which the child was involved, including, but not limited to, individual or family therapy and any prior interventions or other efforts that were implemented and the results thereof;
- any history of domestic violence or child abuse, including sexual abuse, emotional or mental abuse, or evidence that either parent harmed or placed the child’s health, safety, or welfare at substantial risk of harm; and
- any other relevant factor.
It is important to note that the court must also monitor therapy and has the authority to change or stop it if it is not benefiting the child. N.J.S.A. 9:2-4(2)If the court determines that therapy is appropriate, the court may appoint a State licensed mental health professional to commence the therapeutic process and who may coordinate or consult with any treating therapists for the parents and the child. If there is evidence of a history of domestic violence or child abuse, the appointed mental health professional must have substantial training in and experience working with those who have experienced that type of violence or abuse. The therapist shall report to the court, on a periodic basis as determined by the court, regarding the progress of therapy, including but not limited to, the parties’ and child’s willingness to participate in therapy. In addition, children of sufficient age can request to report their experience in the therapy and may also include letters from a treating State licensed mental health professional to support their capacity and maturity to express their reasons. Based on the therapist’s and child’s feedback, the court may, within its discretion, make modifications to ongoing therapy as appropriate, including, but not limited to, ceasing or suspending the therapy, with the reasons for such modifications placed on the record. Nothing set forth herein shall allow:
- therapy that cuts off a child from a safe parent who is not physically or sexually abusive and with whom the child is bonded or to whom the child is attached;
- the use of force, threat of force, or physical obstruction in circumstances that place the safety of the child at risk; or
- the use of undue coercion, verbal abuse, or isolation from the 42 child’s family, community, or other sources of support.
The court must also monitor therapy and has the authority to change or stop it if it is not benefiting the child. This also has the potential to be another litigated issue – is therapy benefitting the child, or not? I guess we’ll have to see. Greater Focus on Domestic Violence and Abuse The revised statute gives added attention to cases involving domestic violence or child abuse. Among other protections:
- A child’s reluctance to see a parent cannot automatically be blamed on the other parent.
- A parent with a history of abuse may not receive increased custody simply to improve the parent-child relationship.
- When therapy is ordered in these cases, the mental health professional must have appropriate training and experience.
These provisions are designed to reduce the risk of custody or therapy decisions placing children in unsafe situations. For parents involved in custody disputes, the revised law in N.J.S.A. 9:2-4 provides clearer expectations and added safeguards. Moreover, Courts are now required to explain their decisions more thoroughly, especially when safety issues, therapy, or a child’s preferences are involved. While every case remains fact-specific, the changes reflect a custody framework that prioritizes child safety, thoughtful decision-making, and respect for children’s voices. While the amendments to N.J.S.A. 9:2-4 do not change the goal of custody law in New Jersey—but they do clarify how that goal should be pursued. By emphasizing safety, individualized outcomes, and careful use of therapeutic interventions, the revised statute provides families with a clearer and more structured approach to resolving custody disputes.
Continue Reading From Discretion to Direction: Understanding New Jersey’s Updated Child Custody Law
