When parents decide to separate, there are often many legal issues to resolve. One of the most significant issues to arise is how to care for the child now that the parents are no longer together. It's not uncommon for child custody matters to become contentious and emotionally challenging, but with the right legal support, you can make the best decisions for your child and family unit.
Attorney Joseph D. Lento and his Family Law Team can help with all family law matters, including child custody arrangements, in Atlantic County, NJ. Call on (888) 535-3686 or contact us online to schedule a meeting.
What Is Child Custody?
Child custody refers to how the responsibility for raising and caring for a child is allocated between parents. It determines two major issues:
● Who the child should live with; and
● Who has the right to make significant decisions regarding the child's upbringing, e.g., their religion and where they go to school.
The most significant child custody laws in NJ can be found in Title 9 of the NJ Statutes.
Child Custody and Child Support
Child custody is not the same as child support. Child support is a legal arrangement designed to ensure that a parent who does not have primary custody contributes financially towards the child's upbringing. While child support may be relevant in custodial matters, it's a different issue so they should not be confused.
Rights of Grandparents
By default, parental rights are usually prioritized over grandparents' rights. There are circumstances in which a grandparent may petition the court for child custody; however, this is rare.
In most cases, grandparents can only petition the court for what is known as visitation rights. Visitation entitles a person to spend time with the child and be a part of their life. Even in such cases, though, the grandparent must show that it's in the child's best interests for the court to award visitation. Visitation will not be awarded automatically.
Types of Child Custody in NJ
There are two main types of custody: physical custody and legal custody.
Who the Child Will Live With - Physical Custody
Physical custody concerns who the child will live with. This is also the parent responsible for providing daily, necessary, and routine care to the child. This responsibility remains in effect until the child reaches the age of 18.
Caring for the Child - Legal Custody
Legal custody is the responsibility for making significant decisions on the child's behalf. While there are no legal rules as to what these decisions are, they typically include decisions around:
● Where the child goes to school.
● What type of medical care the child receives.
● Whether the child undertakes religious ceremonies or enters a certain faith.
Joint or Sole Custody
Custody can be awarded jointly to both parents (joint custody) or solely to one parent (sole custody).
Joint Custody
Joint custody means that both parents have the responsibility of raising the child.
● Joint physical custody: Parents share the responsibility of physically caring for the child. The child will spend a significant amount of time living with each parent.
● Joint legal custody: The responsibility for making significant decisions is shared between both parents.
Joint custody does not always mean a 50/50 split. It simply means that, for example, the child can live with both parents. The amount of time they spend living in each household will depend on what's determined to be in their best interests.
Sole Custody
Sole custody means that the child lives with one parent or only one parent makes decisions for them.
● Sole physical custody: Unless there's a significant issue, such as a history of abuse or neglect, the other parent is usually awarded visitation.
● Sole legal custody: If one parent can prove that the other parent is irresponsible, abusive, or unfit to make decisions regarding the child, then the court may award one parent sole legal custody.
Types of NJ Child Custody Orders
When the court makes a custody determination, it issues a custody order. There are three main types of custody orders: emergency, temporary, and final.
● Emergency Custody Order: An emergency order only lasts a short period (such as a few days). It may be issued if there's an abuse or neglect issue or if there's a risk that a parent will flee the state with the child.
● Temporary Custody Order: A temporary order lasts until there's a hearing for a final custody order. It's not unusual for one parent to receive sole physical custody and for the other parent to get visitation rights.
● Final Custody Order: "Final" orders are designed to last until a child turns 18 or the parents manage to reach an alternative arrangement. Meaning even though the order is final, it can be modified or amended by making another court petition.
When Can a Child Decide Who to Live With?
The age of majority in NJ is 18. Up until the child turns 18, they can't have a definitive say in who they should live with, as they're still considered a minor. However, the courts will consider their opinion as part of the process.
The older the child, the more weight the courts may give to the child's opinion. And although judges will consider a young child's opinion, they will prioritize other factors to decide in the child's best interests. This is because young children do not have the emotional maturity to express a true preference.
The Court's Role in Making Custody Determinations
In child custody actions, the courts cannot give any parent preferential treatment. They cannot make any assumptions about who a child should live with.
However, there is a tendency to favor a "50/50" custody arrangement where possible. This is to ensure that children have an equally loving and strong relationship with both parents. However, 50/50 is by no means the right arrangement for every family, and so the courts must make their determinations based on a proper application of statutory provisions.
How Courts Determine Child Custody
The court will determine custody based on what's in the child's best interests. Although, in many cases, this will indeed mean a 50/50 split, the court must consider various factors before making a custody order.
In broad terms, the court must consider the following factors.
● Whether the parties have a history of abuse.
● If there's any history of domestic violence in the relationship.
● The child's preference if they are mature enough.
● Any mental or psychological concerns or a history of drug or alcohol problems.
● Criminal history, such as convicted sex offenders or domestic violence convictions.
● The ability of the parties to provide a safe and stable environment and more.
Convicted sex offenders, for example, are generally not awarded custody. Domestic violence convictions may also have a significant impact on whether a parent will be awarded custody.
Will Siblings Be Placed Together?
In 2017, the New Jersey Department of Children and Families published a Child Welfare Outcomes Report. Their findings suggest that placing siblings together creates a more supportive and stable environment. Courts have recognized that this is the preferred physical custody arrangement when possible.
The Child Custody Process in Atlantic County NJ
The New Jersey Legislature has adopted a commitment to encourage continual contact between minor children and their parents. In Atlantic County, the Family Court is responsible for hearing matters related to child custody, divorce, parenting time, etc. This agency has jurisdiction in Cape May County as well.
In child custody cases, the goal of the court is always to make decisions based on what is in the child's best interest. With the child's best interests as the guiding principle, here's a summary of how child custody cases typically proceed in Atlantic County, NJ.
File for Custody
First, one parent can file for custody with the family division of the local county court. In Atlantic County, this is the Family Division of the Atlantic County in May's Landing. Alternatively, your case may be handled at the Superior Courthouse in Atlantic City.
If it's an emergency, such as when there's a real risk of physical harm to the child, a judge may hear the application on the same day. A temporary or emergency order may be issued.
Alternatively, in divorce proceedings, you can request custody as part of your divorce complaint.
Parenting Plans
Parents should work together to draw up a parenting plan. A written plan provides both parties with an outline of their parental responsibilities. It should include specific details such as visitation times and the arrangements for vacations and holidays.
The agreement should be reviewed and signed by a judge. Unless it's clearly not in the child's best interests, a judge will usually agree to it.
Mediation
Should parties fail to reach an agreement, the Family Court encourages using a mediator. Parties are usually expected to participate in mediation at this stage unless there's a domestic violence issue.
At this stage, the court may conduct a custody evaluation. This helps the court determine what's in the child's best interests when parents cannot reach an agreement.
Hearing
If there's no agreement, the custody case proceeds to a formal hearing. Both parties present evidence in support of their case. A judge determines how custody should be allocated based on the evidence presented.
It's difficult to predict the outcome of a hearing. The court should, however, always be directed based on what's best for the child's welfare.
Appeals
Parties have the right to appeal a custody order. This may involve filing a motion with the Family Court or appealing to the Superior Court. The Lento Law Firm Team can explain how custody order appeals work as the process relates to your case.
Modifying Custody Agreements
If circumstances change and the order is no longer in the child's best interests, you can apply to modify the custody order. You may wish to do this if, for example, you want to move the child out of state to take a better job.
There are no guarantees that a judge will modify a custody order. The onus is on the petitioner to show that the modification is necessary and that there has been a genuine change in circumstances.
Violating a Child Custody Order
It's an offense to violate or interfere with the terms of a custody order once it's in place. Examples of violating a custody order include:
● Taking a child out of state without the other parent's permission; or
● Failing to return the child to the other parent; or
● Detaining or concealing the child; or
● Neglecting the child or allowing them to partake in dangerous behaviors.
Interfering with a custody order prevents the other parent from having their normal parenting or custody time. This action may also be intended to "evade the jurisdiction of the New Jersey courts."
This may be charged as a second-degree offense if the child is taken out of the country or if the child's whereabouts are not known for more than 24 hours. In most other cases, the parent may be charged with a third-degree offense.
Do I Need an Attorney for a Child Custody Matter?
No. It's possible to file for custody or reach a custody arrangement without a lawyer. However, there are many advantages to hiring an attorney.
● The court process is complex and nuanced, and there may be time limits for filing papers. A lawyer will ensure you understand how to navigate proceedings and meet any specific deadlines.
● Custody agreements can have unforeseen consequences. Your attorney will explain the pros and cons of any agreements so you can make a fully informed decision.
● If there's no scope for reaching an informal agreement, then you may need to go to court. If your case goes before a judge, an attorney will help you make an evidence-based argument to support your position.
The Lento Law Firm Team can inform you of your rights and help you deal with your custody matter with confidence.
Lawyer for Child Custody Cases in New Jersey
Legal actions relating to child custody, visitation, and other family law matters may lead to uncertainty and confusion. It is always important to retain an experienced local attorney in these cases. Joseph D. Lento and the Family Law Team have a firm understanding of the challenges associated with these circumstances. We will carefully evaluate your case, explain your options, and help you proceed in a way that best reflects your child's best interests. Contact us online or call us at (888) 535-3686 for a case consultation.
