Law Lessons from Clemente v. Clemente, App. Div. (A-0290-06T3; Decided November 28, 2008):

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N.J.S.A. 9:2-4(c) requires the trial judge resolving a custody dispute to consider the following factors:
[T]he 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 its 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 age and number of the children.

In addition to the foregoing, a trial court must not lose sight of the “primary and overarching consideration,” which is the best interest of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). “The best-interest analysis is an additional requirement ‘superimposed upon an analysis of the statutory scheme’” which requires that the court consider any and all material evidence which has bearing on the custody decision. Ibid. (quoting Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994)). In contested cases, the court is required under N.J.S.A. 9:2-4(f) to make a record of its reasons for its custody decision and “‘must reference the pertinent statutory criteria with some specificity.’” Ibid. (quoting Terry, supra, 270 N.J. Super. at 119).

Rule 5:1-4(a)(1) provides that a matrimonial action that involves custody shall be given priority. Rule 5:8-6 also allows a judge to conduct the custody hearing in a matrimonial action prior to a final hearing on the remaining issues. This rule furthers the goal of an expeditious resolution of this issue. Nevertheless, the rule is stated in permissive rather than mandatory terms in order to effectuate the overarching goal of the best interests of the children.