CSG Law Alert: Groundbreaking Legislative Change Reshapes Custody Determinations
In the past, a child’s best interests were paramount in custody (decision making) and timesharing (parenting time) determinations. On January 20, 2026, via an amendment to N.J.S.A. 9:2-4, which took effect immediately, the New Jersey Legislature revised several aspects of certain contested child custody cases. While the best interest of the child remains a consideration in making an award of custody, now, under this new legislation, the child’s preference in contested custody and parenting time proceedings is given more weight than other statutory factors.
Parental influence in child preference, however, opens the door for controversy and confusion for children, confusion for courts, and uncertainty for counsel. It remains unseen how courts will ensure that children will have their voices heard in contested custody cases while simultaneously ensuring that children are not thrust into the center of litigation.
In addition, this new legislation allows for input to the court by a licensed mental health professional providing private therapy to a child. While this might seem to be the natural solution, it presents issues regarding the child’s therapeutic privilege and other conflicts with professional codes of conduct of mental health professionals.
Moreover, therapy and/or treatment (absent the consent of both parents) can no longer be court-ordered unless it is found to be “scientifically valid and have generally accepted proof of effectiveness and therapeutic value” under the terms of the new legislation. Therapy is not generally measurable in scientific terms, which begs the question: how will courts measure therapeutic value? It appears that expert testimony will be required to determine therapeutic value, though it remains unknown what would qualify as “expert” testimony when it comes to the scientific validity of therapy.
With courts already understaffed, overrun and still recovering from the impacts of COVID-19, how will courts have the time to speak to children to ascertain that their preferences are not the result of parental influence, lack understanding of the issue, or even a child’s thinking that parenting time must be equal for the child to be fair to both parents? How will the court consider the input of a child’s treating licensed mental health professional when the court cannot freely order the utilization of same? The new legislation is riddled with these types of unanswered questions, which will undoubtedly cause confusion for courts and a lack of consistency for litigants.
Stay tuned. We will too.
For more information, please contact the authors of this alert or the CSG Law Family Law Group.