How is child custody defined in New Jersey?

In New Jersey, there are two kinds of child custody: physical custody and legal custody.  Approximately half the states in the nation share New Jersey's distinction between physical and child custody of a child.  New Jersey child custody laws applies to married parents, separated married parents, and parents who never married.  Child custody laws in New Jersey apply to biological parents, and can also apply to non-biological parents depending on the circumstances of the case.  (For purposes of this blog article, parties seeking or granted custody of a child will be referred to as "parents.")

What are the differences between physical child custody and legal child custody in New Jersey?

"Physical custody" in New Jersey is also referred to as "residential custody."  The parent whom the child lives with has "physical custody" of the child.  This parent is referred to as the "Parent of Primary Residence (PPR)."  The rights, responsibilities, and obligations that accompany being a parent whom the child lives with are also part of physical custody.  For example, a parent's rights, responsibilities, and obligations, may include: providing housing, food, and clothing for their child; making arrangements for their child to go to and from school; helping their child with homework; providing opportunities for recreation and playtime; spending time with their child; and so forth.

"Legal custody" in New Jersey is the legal right to make important decisions on the child's behalf and about the child's life.  A parent's right to decide medical, educational, religious issues, and so forth, are all under the umbrella of New Jersey legal custody.

Can legal custody of a child be shared in New Jersey?

Legal custody of a child not only can be shared by parents, it often is shared in New Jersey.  What this means is that parents will "jointly" make important decisions regarding their child as necessary.  Ultimately, there are two kinds of legal custody in New Jersey: "sole" legal custody and "joint" legal custody.  As their name implies, sole legal custody is the legal right of one parent to make the necessary important decisions regarding their child, whereas with respect to joint legal custody, that legal right is "jointly" shared between the parents. 

For example, a parent who has sole legal custody can decide, on their own accord, if their child will receive vaccinations, where their child will attend school, and what religion their child will be raised.  If a parent does not have legal custody, they will not be able to make these major decisions regarding their child in any capacity.  If parents share joint legal custody, both parents will have the legal right to make these decisions, and are encouraged, if not arguably expected by New Jersey Family Courts, to work towards coming to agreements regarding the major decisions in their child's life.

New Jersey Family Courts prefer parents to share legal custody of their child in most cases.  If New Jersey parents are able to work together in raising their child, they can effectively share joint legal custody.  Sole legal custody in New Jersey, however, is often reserved in instances where parents have difficulty co-parenting.  If parents are going to disagree over most decisions regarding their child, this is not only obviously ineffective, it creates discord in both the parents' and child's life.  Although sole legal custody is not generally not preferred as the standard arrangement, if circumstances otherwise are appropriate, New Jersey Family Court may aware one parent sole legal custody in an effort to limit such potential conflict between parents.

As may be expected, however sometimes parents cannot come to an agreement regarding such major decisions.  For example, if one parent wants their child to go to school "A," and the other parent want their child to go to school "B," how is such a custody issue resolved?  When parents share joint legal custody and they cannot agree, intervention by a Family Court judge, which can take place after petitioning the Court to address the issue in dispute, may be necessary.

What are the different kinds of physical custody in New Jersey?

There are three different kinds of physical custody in New Jersey.  As with legal custody, physical custody can be shared "jointly" by the parents, just as one parent can have sole physical custody.  Physical custody includes:

• Sole Physical Custody: A parent who has sole physical custody of a child has the legal right for their child to live exclusively with this parent.  The other parent often will have visitation time with their child, but such visitation time will most often not allow the child to stay overnight.

• Joint Physical Custody: Parents who have joint physical custody jointly "share" physical custody of their child.  Joint physical custody will afford each parent an equal amount of custody time with the child.  An example of a custody arrangement based on joint physical custody is when a child spends one week with one parent, the next week with the other parent, and so on.

• Shared Physical Custody: A parent who has shared physical custody of their child "shares" physical custody with the other parent as in the case of "joint physical custody," but the difference is that "shared physical custody" allows a child to spend two or more nights per week with each parent, whereas the custody time is split equally with joint physical custody.

Can a child decide which parent to live with in New Jersey?

In certain instances, a child's input as to who the child prefers to live with will be considered by New Jersey Family Courts.  When parents negotiate a custody agreement outside of Family Court,a child's preference can always be considered because the matter is being decided between the parents and child.  When a judge decides custody, the child's age will be considered and also the child's competence in terms of making an intelligible choice as to the child's preference.  Although a judge is required to determine if the child has a preference, and if so, consider the preference if appropriate, parents must understand that age alone is not the determining factor in whether a child's preference will be considered.  The child's maturity and reasoning ability must be decided based upon the particular circumstances of the case at hand.  In addition, even if a mature child has a preference, the judge is not bound by the child's preference.  The judge must consider the preference, but must ultimately decide based on what custody arrangement will serve the "best interests of the child."

Can a custody agreement or custody order be modified in New Jersey?

A custody arrangement that was made by agreement between the parties and a custody order that was decided by a Family Court judge can be modified.  Parents can modify a custody agreement at anytime, whereas a modification of a custody order requires a "change of circumstances".  What constitutes a change of circumstances will be determined by Family Court.  Whereas some judges require a substantial change of circumstances to consider modifying an existing custody order, other judges do not require as high of a threshold to be met.  What will be deemed a sufficient change of circumstances will be determined on a case-by-case basis.  If a parent is seeking modification of custody, the necessary motion has to be filed with Family Court and a court date will be set to address custody modification at that time.

Can I file for emergency custody in New Jersey?

When a child's safety or welfare is at risk, a parent can file for emergency custody.  If Family Court determines that there is an immediate risk to the child, a parent can receive temporary physical custody of the child.  If the child lives with the parent whom the allegations involving risk to the child are made against, New Jersey Family Court will transfer temporary custody to the other parent pending a hearing to determine if a permanent change in custody is appropriate.

Final Thoughts

How New Jersey child custody is defined, and as importantly, how it can be awarded to a parent, is critical to understand.  Child custody laws in New Jersey have distinctions and implications that must be understood and well-navigated to achieve the best possible result.  If parents cannot come to an agreement regarding the custody of their child, it will be necessary to petition Family Court to address the custody issues in dispute. 

Parents must also understand that after a custody petition is filed in New Jersey, it can often take a respectable amount of time to have the Court address the custody of a child because Courts' calendars are so full.  With so much at stake and what amounts an arguable "one-shot" opportunity (at least until the next available court date pending a prospective modification of custody), it is critical to take the necessary steps so that a parent's desired custody rights can be awarded.  Family Court will always decide child custody based on the "best interests of the child," and a New Jersey child custody attorney can help a parent present the necessary evidence and arguments to get the best possible result.

Just as evidence and argument is necessary, it is critical to know the "lay of the land" when custody is at dispute in New Jersey.  Although child custody laws are uniform across New Jersey, practices and procedures vary slightly depending on which Family Court has jurisdiction over the matter.  Whereas one judge may be receptive to certain evidence or argument, another judge may have a different view.  Understanding the critical distinctions can greatly determine the outcome of a custody dispute. 

Attorney Joseph D. Lento has successfully handled clients' custody matters throughout New Jersey, including, but not limited to, Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean, and Salem County.  When child custody is a stake, it is critical to have a determined and experienced attorney in your corner.