Custody Types and the Best Interest Factors in New Jersey

The 2026 amendment

P.L.2025, c.316, approved January 20, 2026 and effective immediately, rewrote the policy statement at the start of N.J.S.A. 9:2-4 and added new provisions. The statute now declares it the public policy of New Jersey to assure that the protection and welfare, both physically and emotionally, of minor children are held paramount, and says this can include continuing contact with both parents after they separate. It states that judicial decisions about custody of, and access to, children shall promote the safety of children as a threshold issue, and that the child’s expressed preferences are to be considered.

Types of custody

In any proceeding involving the custody of a minor child, the rights of both parents are equal, and the court enters an order which may include (N.J.S.A. 9:2-4(a) to (c)):

• Joint custody to both parents, comprised of legal custody or physical custody, which must include provisions for residential arrangements (the child lives either solely with one parent or with each parent, according to the needs of the parents and the child) and provisions for consultation between the parents on major decisions about the child’s health, education and general welfare;
• Sole custody to one parent, with appropriate parenting time for the noncustodial parent; or
• Any other custody arrangement the court determines to be in the child’s best interests.

When parents cannot agree, the custody plan each must file under R. 5:8-5(a) asks for the type of custody requested and the reasons, choosing among joint legal custody with one parent having primary residential care, joint physical custody, sole custody to one parent with parenting time or visitation to the other, or another arrangement.

The factors in N.J.S.A. 9:2-4(c)

In making an award of custody, the court shall consider, but is not limited to, these factors:

• the parents’ ability to agree, communicate, and cooperate in matters relating to the child;
• the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
• the interaction and relationship of the child with the child’s parents and siblings;
• the history of domestic violence and child abuse, if any;
• the safety of the child and the child’s siblings, if any, and the safety of either parent from physical abuse by the other parent;
• the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
• 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;
• 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, taking into account assessments administered by court-appointed professionals;
• 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; and
• the age and number of the children.

A parent shall not be deemed unfit unless that parent’s conduct has a substantial adverse effect on the child (N.J.S.A. 9:2-4).

What the court must do

• Agreed arrangements. The court shall order any custody arrangement agreed to by both parents unless it is contrary to the best interests of the child (N.J.S.A. 9:2-4(d)).
• Custody plans. If the parents cannot agree, the court may require each to submit a custody plan, which it shall consider (N.J.S.A. 9:2-4(e)). Rule 5:8-5 makes the plan mandatory in family actions where the parties cannot agree.
• Findings. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents (N.J.S.A. 9:2-4(f)(1)). If it orders an arrangement contrary to the child’s expressed preferences, it must also place on the record the factors that justify disregarding those preferences (N.J.S.A. 9:2-4(f)(2)).
• Representation for the child. For good cause and on its own motion, the court may appoint a guardian ad litem, an attorney, or both to represent the child’s interests, and may assess the fees between the parties (N.J.S.A. 9:2-4). Under R. 5:8B, a guardian ad litem files a written report with findings and recommendations and is subject to cross-examination.

Court-ordered therapy

Subsection (g), added in 2026, limits therapy ordered by the court. The court shall not order any therapy unless there is generally accepted and scientifically valid proof of its safety, effectiveness and therapeutic value, and it must require a showing of good cause first. No treatment program intended to reunite a child with a party from whom the child is estranged, and whom the child resists or refuses to contact, may be ordered without the consent of both parties and a determination that the child is of sufficient age. The court shall not presume that a child’s reluctance to interact with a party was caused by the other party, and where there is evidence of a history of domestic violence or child abuse, the offending party shall not be granted increased custody to improve the relationship or to address the child’s reluctance (N.J.S.A. 9:2-4(g)).

In deciding good cause for therapy, the statute says a child the court deems of sufficient age who wants to speak to the court shall be granted an audience off the record in chambers, with the record of the conversation sealed (N.J.S.A. 9:2-4(g)(1)(a)).

Related rules

• Records. Every parent, except as prohibited by federal and State law, has access to records about their unemancipated child, including medical, dental, insurance, child care and educational records, whether or not the child lives with that parent, unless a court finds access is not in the child’s best interest or is sought to cause detriment to the other parent (N.J.S.A. 9:2-4.2).
• Certain convictions. A person convicted of sexual assault, sexual contact, or endangering the welfare of a child under the listed sections shall not be awarded custody or visitation except on clear and convincing evidence that it is in the child’s best interest (N.J.S.A. 9:2-4.1).
• Evaluations. Mental health experts who perform custody evaluations must conduct strictly non-partisan evaluations and should refer to the criteria in N.J.S.A. 9:2-4 (R. 5:3-3(b)).

Primary sources

Rules and forms change. Check the current version at the source before you file. New Jersey statutes are published by the Legislature, and the Rules Governing the Courts by the Judiciary. Neither site offers a stable link to a single section, so statute and Court Rule links open the official search page; search there for the citation shown.

• N.J.S.A. 9:2-4, custody of child; rights of both parents
• P.L.2025, c.316, amending N.J.S.A. 9:2-4 (approved January 20, 2026)
• N.J.S.A. 9:2-4.1, custody after certain convictions
• N.J.S.A. 9:2-4.2, parental access to children’s records
• R. 5:3-3, appointment of experts
• R. 5:8-5, custody and parenting time/visitation plans
• R. 5:8B, appointment of guardian ad litem