New Jersey: A Family/Matrimonial: High Net Worth Overview
Significant Changes to the New Jersey Custody Statute in 2026
On 20 January 2026, the former Governor of New Jersey, Phil Murphy, signed S4510/A5761 into law, thereby significantly amending New Jersey’s custody statute, N.J.S.A. 9:2-4. Although the standard of “the best interests of the child” remains the primary focus of New Jersey’s custody statute, the changes to the statute reduce judicial discretion when weighing the best interests factors and provide additional safeguards for children where courts are asked to determine custody and parenting time in divorce matters.
Priority of child safety
Previously, N.J.S.A. 9:2-4 espoused minor children having “frequent and continuing contact with both parents” after the parents divorced or separated. However, that language was removed when the statute was amended. Whereas there were practitioners who previously advocated that joint custody was the presumption in divorce matters, that presumption has been diminished. Instead, the amendments to the custody statute have placed a greater emphasis on child safety. This is in accordance with Kayden’s Law, part of the federal Violence Against Women Act Reauthorization Act of 2022, which dealt with domestic violence and abuse.
Judges must now determine what is in the best interests of a child on a “case-by-case basis”, in light of the fact that child safety is a “threshold issue”. Amendments to the best interest factors delineated in the custody statute now include the need for the courts to consider a history of child abuse, a consideration of a child’s siblings’ safety, input from licensed mental health professionals, and consideration of assessments by court-appointed professionals. Joint custody may only be ordered if that is what is in the best interests of a child “in order to effectuate the protection and welfare of minor children”. As such, there is no guaranteed or pre-determined custody determination since the needs of the children in each family will be analysed by the court.
Child’s preference and judicial justification
The new custody statute expressly provides that children should have their voices considered by the court in contested divorce matters where custody is at issue. The recent amendments did not include a specific age when a child’s preferences should be considered, so determining when a child is of sufficient age and maturity remains the same. Interestingly, however, the new custody statute was amended to specify that if a court orders a custody arrangement that is in contradiction to what a child expressed they desired, the court must place on the record the factors that the court relied upon to justify the court’s custody decision. Therefore, judges now have less discretion and must provide specific justification for their decisions on the record.
Constraints regarding court-ordered therapy
Perhaps the most controversial changes to the New Jersey custody statute include the new restrictions pertaining to court-ordered therapy. Specifically, courts cannot order any therapy unless there is “scientifically valid proof of the safety, effectiveness, and therapeutic value of the therapy”. Additionally, reunification therapy cannot be ordered by a court unless there is consent from both parents and if the child is of “sufficient age”. The amendments set forth a set of factors for courts to weigh when determining whether to order therapy. These factors include, but are not limited to: the perspectives from each parent or child (if of sufficient age, capacity and maturity), wherein a child requesting to be heard will be granted the opportunity to speak with the court in camera, with a sealed record; a child’s age, capacity and maturity; willingness of a parent and child to engage in therapy; conduct by a parent against the other parent; a summary of the history of therapy; and a history of domestic violence or child abuse.
If, after consideration of the aforementioned factors, a court finds that therapy is warranted, a court may appoint a state licensed mental health professional to begin therapy. The therapist must report to the court as to whether there is progress with therapy. The amendment also requires a child in therapy to provide the court with their experience in therapy. In fact, a child of sufficient age can now request to report their experience in therapy including letters from their state licensed mental health professional to support their point.
Practical implications
Practically, these amendments to the custody statute mean that concerns over a child’s safety with one or more parent(s) will be at the forefront of the discussion in divorce matters. Parents with documentation of domestic violence, physical or sexual abuse, or risk of harm to a child should disclose this information for immediate consideration.
Noteworthy considerations include whether a child will be thrust even deeper into custody battles now that their express preference is a consideration. Will parents try to convince their child to disparage the other parent to gain a litigation advantage? In toxic families where domestic violence and coercive control are prevalent, one parent may attempt to threaten or persuade a child to voice an express preference for increased parenting time with that toxic parent.
Another troublesome consideration includes that a mental health professional now seemingly appears to have a role akin to a forensic expert. Before, mental health professionals were tasked with observing facts. Now, therapists seem to have more of an evaluative role. Will this change detrimentally impact the doctor–patient privilege? Will a child who previously feared speaking to therapists for fear that their confidential opinions would be released to the toxic parent now be automatically placed at the forefront of the custody conflict? How will alienated parents be reunified with their child?
Since input from custody experts and mental health professionals are now express considerations when courts determine custody and parenting time, this will likely increase the need for risk assessments, best interest evaluations, and requests for court-appointed professionals, such as a guardian ad litem to assist with contested cases. Forensic experts who are trained to evaluate custody issues will likely be increasingly appointed. Courts will also likely find the need to hold plenary hearings with issues concerning whether reunification therapy is appropriate and custody determinations. Only time, and precedent within future case law, will tell.