interests standard in New Jersey

2026A-3588-23 19 The first prong of the best interests test requires the Division to show that "the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" Id. at 449 (quoting K.H.O., 161 N.J. at 352 ).

2026"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

2026In adopting the best interests standard, the Bisbing Court specifically overruled the two-part removal test Baures v. Lewis, 167 N.J. 91 (2001). 230 N.J. at 312-23 .

2026In pertinent part, N.J.S.A. 9:2-2 prohibits the removal of a child "without the consent of both parents, unless the court, upon cause shown, shall otherwise order." Our Supreme Court has interpreted "cause" under N.J.S.A. 9:2-2 as requiring the petitioning parent to satisfy the "the best interests analysis . . . set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as appropriate." Bisbing, 230 N.J. at 338 (citing N.J.S.A. 9:2-4(c)).

2026Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citing Beck v. Beck, 86 N.J. 480 -96 n.8 (1981)) ("A custody arrangement adopted by the trial court, whether based on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:2-4.") "The court must focus on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand, 391 N

2026"In custody cases, it is well settled that the court's primary consideration is the best interests of the child[]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citations omitted) ("A A-3491-24 7 custody arrangement adopted by the trial court, whether based on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:

2026A-3588-23 19 The first prong of the best interests test requires the Division to show that "the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" Id. at 449 (quoting K.H.O., 161 N.J. at 352 ).

2020Thus, "the fourth prong of the best interests standard [does not] require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.

2025Under prong two, "the inquiry centers on whether the parent is able to remove the danger facing the child." Id. at 451 (citing K.H.O., 161 N.J. at 352 ); see also D.C.A., 256 N.J. at 27 (finding prong two as amended was intended "to ensure that parental fitness – not the child's bond with the resource parents – is the core inquiry when a judge considers the best interests standard’s second prong in a termination of parental rights case").

2024Under prong two, "the inquiry centers on whether the parent is able to remove the danger facing the child." Id. at 451 (citing K.H.O., 161 N.J. at 352 ); A-0551-23 14 see also D.C.A., 256 N.J. at 27 (finding prong two as amended was intended "to ensure that parental fitness – not the child's bond with the resource parents – is the core inquiry when a judge considers the best interests standard’s second prong in a termination of parental rights case").

2021The best interests standard, which was established in A.W. and thereafter codified at N.J.S.A. 30:4C-15.1(a), "aims to achieve the appropriate balance between parental rights and the State's parens patriae responsibility." Id. at 554 (quoting N.J.

2020Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986) (finding lack of evidence parents "would be able to eliminate the potential for harm to their children in the near future" supports a finding the Division satisfied its burden of establishing the second prong of the best interests standard).

2025The fourth prong of the best interests test "serves as a fail-safe against termination even where the remaining standards have been met." E.P., 196 N.J. at 108 (quoting G.L., 191 N.J. at 609 ).

2024Servs. v. G.L., 191 N.J. 596, 609 (2007)). [T]he fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties.

2025See D.C.A., 256 N.J. at 28 (holding the 2021 amendment to N.J.S.A. 30:4C-15.1(a) "precludes a court from considering the bond between a child and resource parents under the second prong of the best interests standard but does not bar such evidence when the court addresses that standard's fourth prong"). "[A] child's need for permanency is an extremely important consideration pursuant to this prong." R.G., 217 N.J. at 559 . "[A] child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." F.M.

2025Under prong two, the Division must prove by clear and convincing evidence that the "parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C- 15.1(a)(2). "[T]he inquiry centers on whether the parent is able to remove the danger facing the child." F.M., 211 N.J. at 451 (citing K.H.O., 161 N.J. at 352 ); see also D.C.A., 256 N.J. at 27 (finding prong two, as amended in 2021, was intended "to ensure that parental fitness–not the child's b

2026Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citing Beck v. Beck, 86 N.J. 480 -96 n.8 (1981)) ("A custody arrangement adopted by the trial court, whether based on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:2-4.") "The court must focus on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand, 391 N

2026"In custody cases, it is well settled that the court's primary consideration is the best interests of the child[]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citations omitted) ("A A-3491-24 7 custody arrangement adopted by the trial court, whether based on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:

2026Thereafter, "[c]ustody and visitation issues between them are to be determined on a best interests standard giving weight to the factors set forth in N.J.S.A. 9:2-4." Id. at 227-28.

2017See V.C. v. M.J.B., 163 N.J. 200, 227-28 ("[c]ustody and visitation issues . . . are to be determined on a best interests standard giving weight to the factors set forth in N.J.S.A. 9:2-4"), cert. denied, 531 U.S. 926 , 9 A-1149-16T1 121 S. Ct. 302 , 148 L.

2026Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citing Beck v. Beck, 86 N.J. 480 -96 n.8 (1981)) ("A custody arrangement adopted by the trial court, whether based on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:2-4.") "The court must focus on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand, 391 N

2026"A custody arrangement adopted by the trial court, whether based on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:2-4." Bisbing, 230 N.J. at 322 (citing Beck v. Beck, 86 N.J. 480 , 496 n.8 (1981)).

2016See Moriarty, supra, 177 N.J. at 113 (noting that a best interests test can be satisfied although the child suffers no harm) (citing Watkins v. Nelson, 163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50, 63-65 (2011) (noting that a custodial parent's burden to prove good faith and lack of harm in order to remove the child is less onerous than a showing of best interests).

2014Id. at 237, 748 A.2d 558 (“That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of ‘exceptional circumstances,’ but never by a simple application of the best interests test.”).

2025"Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., 189 N.J. at 281 (internal quotation marks omitted).

2023Courts should exercise caution in inferring legislative intent from statements made by legislative staff. 30 significant because courts had been considering comparative harm in applying prong four of the best interests test for decades, see F.M., 211 N.J. at 453 ; M.M., 189 N.J. at 281 ; K.H.O., 161 N.J. at 353-55 , as the Legislature was aware, see McCray, 243 N.J. at 217.

2025See In re Guardianship of J.N.H., 172 N.J. 440, 477-78 (2002) (court should have reconsidered fourth prong because foster family "imposed, as a condition of adoption, a complete severance of any connection between [the child] and his now intact birth family").

2020Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., 191 N.J. at 609 . "[T]he question to be addressed under [prong four] is whether, after considering and balancing the two relationships, the child[ren] will suffer a greater harm from the termination of ties with [their] natural parents than from permanent disruption of [their] relationship with [their] foster parents." I.S., 202 N.J. at 181 (quoting J.N.H., 172 N.J. at 478 ).

2026"In custody cases, it is well settled that the court's primary consideration is the best interests of the child[]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citations omitted) ("A A-3491-24 7 custody arrangement adopted by the trial court, whether based on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:

2024This best interests standard "protects the 'safety, happiness, physical, mental[,] and moral welfare of the child.'" Beck v. Beck, 86 N.J. 480, 497 (1981) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

2026Moriarty, 177 N.J. at 116 (stating that a dispute between a "fit custodial parent and the child's grandparent is not a contest between equals[,]" consequently "the best interests standard, which is the tiebreaker between fit parents, is inapplicable"). . . .

2016See Moriarty, supra, 177 N.J. at 113 (noting that a best interests test can be satisfied although the child suffers no harm) (citing Watkins v. Nelson, 163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50, 63-65 (2011) (noting that a custodial parent's burden to prove good faith and lack of harm in order to remove the child is less onerous than a showing of best interests).

2017Super. at 62 (noting that Lepis creates a two-step process, and that an applicant must first demonstrate changed circumstances before the court should engage in a best interests analysis); Abouzahr, supra, 361 N.J.

2017A custody arrangement adopted by the trial court, whether based on the parties’ agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A 9:2-4. 5 See Beck v. Beck, 86 N.J. 480 , 496 n.8, 432 A.2d 63 (1981) (noting that party seeking change in custody arrangement must demonstrate “change of circumstances warranting modification”); Mimkon v. Ford, 66 N.J. 426, 438 , 332 A.2d 199 (1976) (holding that custody orders are “subject to modification at any time

2020Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 145 (2018) (quoting K.H.O., 161 N.J. at 348 ).

2019Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 145 (2018) (quoting In re Guardianship of A-0853-18T2 22 K.H.O., 161 N.J. 337, 348 (1999)).

2019Based upon our standard of review, we give "deference to family court[s'] fact[-]finding" because of "the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).

2017See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

2019"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Id. at 166 A-5272-17T2 10 (quoting N.J.

2019"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Id. at 166 (quoting N.J.

1999Biological relationships are not an exclusive determinate of the existence of a family. [Id. 165 N.J.Super. at 272 , 398 A.2d 109 . (citations omitted).] See also Todd v. Sheridan, 268 N.J.Super. 387 , 633 A.2d 1009 (App.Div.1993) (reversing custody award to father, and ordering a best interests test to consider maternal grandparents’ custody claim as the child’s psychological parents and primary caretakers).

1999Biological relationships are not an exclusive determinate of the existence of a family. [Id. 165 N.J.Super. at 272 , 398 A.2d 109 . (citations omitted).] See also Todd v. Sheridan, 268 N.J.Super. 387 , 633 A.2d 1009 (App.Div.1993) (reversing custody award to father, and ordering a best interests test to consider maternal grandparents’ custody claim as the child’s psychological parents and primary caretakers).

2024A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child. [N.J.S.A. 9:2-4(c).] A-1425-22 12 Indeed, it is well established a best interests analysis under N.J.S.A 9:2 -4 "requires the court to consider any and all material evidence[,]" Kinsella, 150 N.J. at 317 , and "must be based on all circumstances, on everything that actually has occurred, on everything that is relevant to the child's best interests[,]" In re Baby M., 109 N.J. 396, 456 (1988) (emphasis added).

2000In such circumstances, the best interests test should apply. [ Zack, supra 235 N.J.Super. at 432 , 563 A.2d 58 (citing In re Baby M., 109 N.J. 396, 445 , 537 A.2d 1227 (1988)).] The tension between the welfare of the children, parents’ rights, and judicial reluctance to find in favor of third parties over fit natural parents has been reconciled by one commentator: Although the two approaches are distinct in theory and not always compatible, in most cases they will lead to the same conclusion and are different ways of emphasizing the same goal.

2026The harm to the grandchild must be "a particular identifiable harm, specific to the child." Mizrahi v. Cannon, 375 N.J.

2020In fact, the moving party must demonstrate "a particular identifiable harm, A-3543-18T4 11 specific to the child." Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005).

2025This fourth prong of the best interests test "serves as a fail-safe against termination even where the remaining standards have been met." E.P., 196 N.J. at 108 .

2025The fourth prong of the best interests test "serves as a fail-safe against termination even where the remaining standards have been met." E.P., 196 N.J. at 108 .

2026In adopting the best interests standard, the Bisbing Court specifically overruled the two-part removal test Baures v. Lewis, 167 N.J. 91 (2001). 230 N.J. at 312-23 .

2026Baures v. Lewis, 167 N.J. 91 (2001), overruled by Bisbing v. Bisbing, 230 N.J. 309, 312-13 (2017).

2000In such circumstances, the best interests test should apply. [ Zack, supra 235 N.J.Super. at 432 , 563 A.2d 58 (citing In re Baby M., 109 N.J. 396, 445 , 537 A.2d 1227 (1988)).] The tension between the welfare of the children, parents’ rights, and judicial reluctance to find in favor of third parties over fit natural parents has been reconciled by one commentator: Although the two approaches are distinct in theory and not always compatible, in most cases they will lead to the same conclusion and are different ways of emphasizing the same goal.

2000In such circumstances, the best interests test should apply. [ Zack, supra 235 N.J.Super. at 432 , 563 A.2d 58 (citing In re Baby M., 109 N.J. 396, 445 , 537 A.2d 1227 (1988)).] The tension between the welfare of the children, parents’ rights, and judicial reluctance to find in favor of third parties over fit natural parents has been reconciled by one commentator: Although the two approaches are distinct in theory and not always compatible, in most cases they will lead to the same conclusion and are different ways of emphasizing the same goal.

2019Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506-07 (2004)).

2019Div. of Youth & Family Servs. v. P.P., 180 N.J. 494 , 506–07 (2004)).

1999Biological relationships are not an exclusive determinate of the existence of a family. [Id. 165 N.J.Super. at 272 , 398 A.2d 109 . (citations omitted).] See also Todd v. Sheridan, 268 N.J.Super. 387 , 633 A.2d 1009 (App.Div.1993) (reversing custody award to father, and ordering a best interests test to consider maternal grandparents’ custody claim as the child’s psychological parents and primary caretakers).

1999Biological relationships are not an exclusive determinate of the existence of a family. [Id. 165 N.J.Super. at 272 , 398 A.2d 109 . (citations omitted).] See also Todd v. Sheridan, 268 N.J.Super. 387 , 633 A.2d 1009 (App.Div.1993) (reversing custody award to father, and ordering a best interests test to consider maternal grandparents’ custody claim as the child’s psychological parents and primary caretakers).

2017Our decision to replace the Baures test with a best interests analysis is consonant with our opinion in Emma v. Evans, 215 N.J. 197, 216-23 , 71 A.3d 862 (2013).

2017Our decision to replace the Baures test with a best interests analysis is consonant with our opinion in Emma v. Evans, 215 N.J. 197, 216-23 , 71 A.3d 862 (2013).

1999Palermo v. Palermo, 164 N.J.Super. 492, 497 , 397 A.2d 349 (App.Div.1978) (custody awarded to child’s stepmother over the natural father); S.M. v. S.J., 143 N.J.Super. 379 , 363 A.2d 353 (Ch.Div.1976).

1989In allowing the aunt, whom the court characterized as the child's "psychological mother," [3] to retain custody, the court said that it was adopting a best interests standard: "when the best interests of the child will *431 clearly be served by a custody award to a third party, a finding of either parental unfitness or abandonment is not a prerequisite to the entry of an order doing so." Id. at 272 ; see S.M. v. S.J., 143 N.J.