How Does The Court Decide Who Gets Primary Parenting Rights?

How does the Court decide who gets primary parenting rights if both parents want it? What factors do the courts consider in granting custody?

By Diana N. Fredericks
September 22, 2015

If the parents are unable to reach an agreement on custody and parenting time, they will be required to attend custody and parenting time mediation with the court staff in the county in which they have filed for divorce. Only the parties attend this mediation, not their attorneys. If said mediation is unsuccessful, they have the right to jointly or independently hire a psychologist to perform a custody evaluation, which typically involves interviewing the parties, conducting psychological testing, interviewing the children with and without the parents, and interviewing collaterals (schools, doctors, teachers, etc.) before issuing a formal written report. If the parties are unable to reach an agreement, the Court may also appoint a custody evaluator. These evaluations are very lengthy (sometimes taking six months or as long as eighteen months) and extremely expensive. Moreover, the parents are divesting control of decision making regarding their children to a third party, who may not appreciate what is in the child’s best interests. However, if the parties are unable to agree, this is a likely course of action.


In New Jersey, custody is determined by statute which sets forth specific factors for consideration of what is in the child’s best interests.


In making a custody determination, there are a number of mandatory factors that the Legislature has directed the Court to consider, such as:

  • 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 his or her parents and siblings;
  • the history of domestic violence, if any;
  • the safety of the child 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 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;
  • 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 ages of and the number of children.

Custody and parenting time are often the most difficult issues to navigate. It is imperative that you express to your attorney your preferences and enact a plan of action.

Diana N. Fredericks, a family law attorney at Gebhardt & Kiefer, P.C. Diana works with clients whose needs lie in all areas of matrimonial and family law.

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September 22, 2015
Categories:  Child Custody|FAQs

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