All parents have a fundamental liberty interest in the care, custody, and supervision of their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558-59 (1972)). According to Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984):
It has also been held that a parent’s rights to the care and companionship of his or her child are so fundamental as to be guaranteed protection under the First, Ninth and Fourteenth Amendments of the United States Constitution. Our courts recognize the rights of parents to custody and visitation and hold those rights in high esteem.
[Ibid. (citing Fantony v. Fantony, 21 N.J. 525 (1956); Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982).]
There is an overriding principal that “clearly favors keeping children with their natural parents.” In re Guardianship of J.C., 129 N.J. 1, 7–8 (1992). Presumably, “natural bonds of affection lead parents to act in the best interests of their children.” 1 W. Blackstone, Commentaries; 2 J. Kent, Commentaries on American Law. However, “a parent’s custody and visitation rights may be restricted, or even terminated, where the relation of one parent (or even both) with the child cause emotional or physical harm to the child, or where the parent is shown to be unfit.” Wilke v. Culp, supra, 196 N.J. Super. at 496 (citing In re N., 96 N.J. Super. 415, 423–424 (App. Div. 1967).
“A primary concern in determining questions of visitation and custody is the best interests of the child.” Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984) (citing Fiore v. Fiore, 49 N.J. Super. 219 (App.Div.1958), certif. den., 28 N.J. 59 (1958)).
In S.M. v. K.M., 433 N.J. Super. 552 (App. Div. 2013), the Appellate Division reversed the trial court’s order that denied a father’s right to visitation with his children. Ibid. In S.M. v. K.M., 433 N.J. Super. 552 (App. Div. 2013), during the pendency of divorce proceedings, the father was indicted on criminal charges of endangering the welfare of a child, possession of a weapon for an unlawful purpose, and aggravated assault. Ibid. The court held:
Not only do parents have a constitutional right to enjoy a relationship with their children, children likewise have the right to visit with their parents after they have been removed from the parent’s home. . . . . The Children’s Bill of Rights states that a child has the right ‘to visit with [his or her] parents or legal guardians …’ or to ‘otherwise maintain contact with [his or her] parents or legal guardian.’ A child’s best interests are generally fostered when both parents are involved with the child, assuring the child of frequent and continuing contact with both parties.
[Ibid. (citing In Re Guardianship of K.H.O., 161 N.J. 337, 346, 736 A.2d 1246 (1999); quoting N.J.S.A. 9:6B-4A(e).]
Moreover, it has been held that “Neither father nor mother has the greater [right] to the custody of the child in a contest between them.” Fiore v. Fiore, 49 N.J. Super. 219, 226 (App. Div. 1958) (citing Turney v. Nooney, 5 N.J. Super. 392, 397 (App.Div.1949). As stated in Smith v. Smith, 85 N.J. Super. 462, 469 (Juv. & Dom. Rel. 1964):
A contest between parents, the happiness and welfare of the children should be the determining factor and the court should strain every effort to attain for the child the affection of both parents rather than one. ‘The greatest benefit a court can bestow upon children’ is to insure that they shall not only retain the love of both parents but shall at all times and constantly be ‘deeply imbued with love and respect for both parents.’
[Ibid. (quoting Turney v. Nooney, 5 N.J. Super. 392, 397, (App.Div.1949).]
According to N.J.S.A. 9:2-4, “The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” Ibid. N.J.S.A. 9:2-4 also provides:
In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include:
In making an award of custody, the court shall consider but not be limited to the following factors: 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 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. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.