Child custody disputes can be among the most contentious, heart-wrenching, and complicated issues couples face when they choose to part ways. Apart from the parents' emotional stress and conflicting interests, there is the overarching question of what is best for the child. And when parents can't make these decisions together, it often falls to the courts to decide custody—which in itself can also be taxing and contentious.
At times like these, with so much at stake, you need the experience of a New Jersey family law attorney who can help you make the best choices for your child and family. Attorney Joseph D. Lento and his Family Law Team are equipped to handle all family law concerns, including child custody agreements, in Cape May County, NJ. To schedule a consultation, call (888) 535-3686 or contact us online.
Understanding Child Custody, by the Law
Child custody refers to the division of parental responsibilities for raising and caring for a child. This entails two pivotal aspects: where the child will reside and who possesses the authority to make significant decisions about the child's upbringing, such as education and religious background. You can find the specifics of New Jersey's child custody laws in Title 9 of the NJ Statutes.
Distinguishing Between Child Custody and Child Support
From a legal standpoint, we need to differentiate between child custody and child support. Child support refers to the legal guardianship and responsibility of a child, which may be granted to one or both parents or, in some cases, to a third party. Child support is a separate issue that deals with determining the role of the non-custodial parent in contributing financially to the child's upbringing. Although child support may be relevant in custody cases, it should not be conflated with child custody as it's a distinct legal provision.
Do Grandparents Have Custody Rights in New Jersey?
Typically, parents' rights take precedence over grandparents' rights. In rare cases, grandparents may petition the court for child custody. In most cases, however, grandparents usually only seek visitation rights, which gives them the ability to spend time with the child and be involved in their life, as opposed to full custody. To obtain visitation rights, grandparents must demonstrate that it is in the child's best interests as it isn't granted automatically.
New Jersey Child Custody Categories
New Jersey recognizes two primary kinds of child custody: physical custody and legal custody.
Physical Custody - Child's Residence
Physical custody relates to the child's living arrangements and daily care. The parent awarded physical custody will be responsible for the child's everyday needs and routine care until they turn 18.
Legal Custody - Decision-Making
Legal custody involves having the authority to make significant decisions on behalf of the child regarding their upbringing. While no specific legal guidelines dictate these decisions, most of these decisions involve aspects such as where the child attends school, medical decisions, and choices regarding religious upbringing.
Joint or Sole Custody
Custody (both physical and legal custody) may be awarded to both parents jointly (joint custody) or only one parent (sole custody).
Joint Custody
Joint custody entails both parents sharing the responsibility of raising the child. This includes:
- Joint physical custody: Parents share the duty of caring for the child physically, with the child dividing their time living with each parent.
- Joint legal custody: Both parents share the responsibility of making important decisions for the child.
Joint custody doesn't always imply an equal division of time. It merely means that the child can live with both parents, with the specific time spent in each household determined by the child's best interests.
Sole Custody
Sole custody gives one parent exclusive rights to live with the child or make decisions on their behalf.
- Sole physical custody: Unless there are severe issues like abuse or neglect, the other parent usually receives visitation rights.
- Sole legal custody: If a parent can prove the other parent is unfit, irresponsible, or abusive, the court may grant sole legal custody to one parent.
Types of NJ Child Custody Orders
When deciding on child custody, the court issues orders that determine which parent is responsible for the child's care and, in some cases, where the child will reside. These orders can be classified into three primary types: emergency, temporary, and final custody orders.
Emergency Custody Order: Lasting only a short time (e.g., a few days), this order may be issued in cases of abuse, neglect, or risk of parental abduction. Emergency custody orders are usually granted in cases of immediate danger to the child.
Temporary Custody Order: This order remains in effect until a final custody order hearing. It generally awards one parent sole physical custody and the other parent visitation rights.
Final Custody Order: Intended to last until the child turns 18 or an alternative arrangement is reached, these orders can be modified or amended through another court petition.
In many custody cases, the judge will issue a temporary custody order in advance of a hearing to determine final custody. Some custody cases involve issuing all three types of orders in sequence (emergency, temporary, and final).
When Can a Child Choose Their Residence?
In New Jersey, the age of majority is 18. Until then, children are considered minors and can't decide their living arrangements. However, the courts will take their opinion into account during the process, as well as other factors such as the child's age, health, and well-being, the parent's ability to provide care and any history of domestic violence or abuse. While the court's decision regarding custody arrangements is ultimately based on the best interests of the child, the child's input can play a crucial role in determining their living situation.
The child's opinion carries more weight with the court as they grow older. While judges may consider young children's preferences, they prioritize other factors in determining the child's best interests since young children lack the emotional maturity to express a genuine preference.
The Court's Responsibility in Custody Decisions
When determining child custody, courts must ensure fair and unbiased treatment of both parents throughout the process. They cannot assume which parent the child should reside with by default and must take into account a variety of factors, such as the parent's ability to provide a stable and safe environment, the child's relationship with each parent, and the child's own wishes. Ultimately, the goal is to find the best possible arrangement that serves the best interests of the child, which may require a nuanced approach that takes into account the unique circumstances of each case.
In many instances, the court may lean towards an equal custody arrangement, allowing children to maintain strong and loving relationships with both parents. However, a 50/50 custody split may not be suitable for every family, so the court must make its decision based on the appropriate legal provisions.
Factors Considered by Courts in Child Custody Decisions
When the courts decide on child custody arrangements, the overarching determiner is what is in the best interests of the child. While this often results in a 50/50 custody arrangement, it doesn't always. The court must consider a variety of factors, such as:
- Whether either or both parents have a history of abuse;
- History of domestic violence in the relationship;
- Mental or psychological concerns;
- History of drug or alcohol problems;
- Criminal records, such as convictions for sex offenses or domestic violence;
- Each parent's ability to provide a safe and stable environment for the child, among other factors; and
- The child's preference if they are mature enough.
Some factors obviously are weighed heavier than others—for example, convicted sex offenders are typically denied custody due to the high likelihood of them causing harm to children. Similarly, a history of domestic violence can significantly impact the court's decision to grant custody as it raises concerns about the safety and well-being of the child.
Keeping Siblings Together
According to a 2017 Child Welfare Outcomes Report by the New Jersey Department of Children and Families, keeping siblings together in custody arrangements creates a more supportive and stable environment. Courts recognize this as the preferred physical custody arrangement when feasible.
How Child Custody Works in Cape May County, NJ
In Cape May County, the Family Court oversees matters related to child custody, divorce, parenting time, and more. New Jersey law promotes ongoing contact between minor children and their parents whenever possible, however, custody is determined. Below is an overview of the typical child custody trial process in Cape May County, NJ:
Filing for Custody
A parent may file a custody complaint with the Family Division of the Cape May County Superior Court at the following address:
Superior Court Chancery, Family Part
Superior Court - Cape May
4 Moore Rd.
Cape May Court House, New Jersey 08210
Emergency cases, such as those involving immediate risk to the child, may be heard on the same day, resulting in a temporary or emergency custody order. Alternatively, custody can be requested as part of a divorce complaint.
Submitting Parenting Plans
Where possible, parents should collaborate to develop a written parenting plan outlining their respective responsibilities for the child, including visitation schedules and arrangements for vacations and holidays. In most cases, the judge will typically approve the plan unless it is deemed not to be in the child's best interest.
Mediation
If parents cannot agree on a plan, the Family Court recommends mediation to help the parents come to an agreement out of court. A custody evaluation may be conducted to help determine the child's best interests if an agreement cannot be reached in mediation.
Hearing
If the parents can't reach an acceptable agreement, the custody case proceeds to a formal hearing where both parties present evidence supporting their case. The judge will decide custody based on the evidence presented, always prioritizing the child's welfare.
Appeals
If you disagree with the ruling of the judge regarding custody, or if you believe your rights have been slighted, you have the right to appeal a custody order, either by filing a motion with the Family Court or appealing to the Superior Court. The Family Law Team at the Lento Law Firm can provide you with an explanation of the appeals process for custody orders as it pertains to your unique case.
Modifying Custody Agreements
Circumstances frequently change for one or both parents after the custody agreement is made. If the current custody order no longer serves the child's best interests, either parent can file a request to modify the agreement. The petitioner must prove that the modification is necessary due to a significant change in circumstances.
Violating a Child Custody Order
It is a criminal offense to violate or interfere with a custody order. Examples of violations include:
- Taking the child out of state without permission,
- Failing to return the child to the other parent
- Detaining or hiding the child
- Allowing the child to engage in dangerous activities.
Violating a custody order can lead to criminal charges, ranging from second-degree offenses to third-degree offenses, depending on the severity of the violation. It may also negatively impact your custody rights concerning the child.
Is Hiring an Attorney Necessary for Child Custody Issues?
While it is not mandatory to hire an attorney for child custody matters, enlisting the help of a legal professional offers several benefits. Here's why:
- The court process is complex and nuanced, with only a relatively short time to file paperwork. A skilled attorney will guide you through legal proceedings and ensure you meet critical deadlines.
- Custody agreements may come with unforeseen consequences. Your attorney will assess the advantages and disadvantages of any agreements to help you make an informed decision.
- You may need to go to court to resolve custody disputes. In the event that your case is presented before a judge, an attorney will assist you in constructing an argument, grounded in evidence, that supports your position.
The Lento Law Firm Team is dedicated to helping you understand your rights and confidently address your child custody concerns.
New Jersey Child Custody Attorney
Family law matters involving child custody, visitation rights, and other related issues can be overwhelming and confusing. Your best hope of navigating these murky waters successfully is with the help of an experienced New Jersey child custody attorney. Joseph D. Lento and his Family Law Team have extensive knowledge of the challenges that arise in these situations and will help you navigate the process with your child's best interests in mind. To schedule a case consultation, contact us online or call us at (888) 535-3686.
