Divorce is difficult and complicated, involving both emotional and legal issues that families must deal with. On the legal side, one of the thorniest issues is often how the two parents are going to care for their children going forward now that the parents will no longer be living together. There can be a lot of emotions tied to these kinds of decisions, which is why New Jersey has developed a set of laws and procedures designed to help guide parents when dealing with child custody issues. Having the help of an experienced family law attorney can often greatly ease what can be a very difficult and stressful time for parents.
The Lento Law Firm Family Law Team has years of experience helping parents navigate the sometimes-confusing child custody laws and procedures in New Jersey, including in Hudson County. The Lento Law Firm Family Law Team has put together this guide to child custody in Hudson County to help parents understand what to expect as they proceed with a divorce. To learn more about how we can help you with your particular situation, contact us at 888-535-3686, or use our online contact form to schedule a confidential consultation.
What Is Child Custody?
At its essence, child custody refers to a set of decisions that parents and a court make about how to raise and care for the children of a couple that is divorcing. By law, the focus of any court deciding a child custody question in New Jersey must be on what is in the best interests of the child.
The two main issues that Child Custody deals with are:
- Who will the child live with, and
- Who will have the right to make decisions about the child's care, such as those relating to the child's education, religion, health care, and the like.
Many of New Jersey's laws relating to child custody issues can be found in Title 9 of the New Jersey Statutes. They cover a wide range of child custody issues, such as what powers the court has to make decisions about child custody, guidelines for the court to use in making custody decisions, and other issues that may arise in divorce custody proceedings.
Child Custody vs. Child Support
Child custody is different than child support. One parent may have primary custody of a child, and the other parent may still be responsible for some portion of the cost to support the child. Deciding who pays for what and how much is typically a separate decision from deciding what the custody arrangements will be. While courts won't ignore the support issue when deciding how custody will work, it, for the most part, is a different issue.
The rights of grandparents to visit with a child of divorced parents are not automatic. While New Jersey law does provide for situations where the grandparents can ask the court to issue an order requiring visitation, in most cases, this is an issue that is left to the parents to resolve. Visitation is not the same as custody; it simply means spending time with the child and being involved to some extent in the child's life. A grandparent with visitation rights does not have the right of a custodial parent to make important decisions about the child's life.
In some fairly rare cases, grandparents may be awarded custody of the child of a divorced couple. The circumstances where this may occur are unusual, and again, the court will be focused on what is in the best interests of the child.
Types of Child Custody in New Jersey
There are two main different types of custody, which are quite different from one another: physical custody and legal custody.
- Physical Custody – Who the Child Lives With
Physical custody describes who the child will live with. The parent who has physical custody is also responsible for the child's day-to-day needs, such as food, clothing, shelter, transportation, and the like. Custody typically continues until the child turns 18, though, of course, after that age, a child may choose to continue to live with their custodial parent.
- Legal Custody – Caring for the Child
Legal custody describes who will make important decisions about the child's life, apart from who the child will live with. These can include:
- Where the child will go to school
- The type or types of medical care the child will receive
- What religion, if any, the child will practice, and how often and to what extent the child will be exposed to the religion
In a Joint Custody arrangement, both parents share the responsibilities of raising the child.
- Joint Physical Custody – Parents will share the responsibility for the child's day-to-day care. This usually means that the child will spend a significant amount of time with each parent, for example, two weeks with one parent and then two weeks with the other. It's not always a 50/50 split, however, and is guided by what the court believes will be in the child's best interests.
- Joint Legal Custody – The parents share the responsibility of making significant decisions about the child's care and upbringing. Neither parent has the absolute right to make a decision.
Note that, depending on what the court considers to be in the child's best interests, one parent may have sole physical custody of the child, and both parents may share joint legal custody of the child.
In some cases, only one parent is awarded custody. This can happen where there is a history of the other parent abusing or neglecting the child, but there can be other reasons for a court to decide that it's in the child's best interests to award sole custody to one of the parents.
- Sole Physical Custody. If sole custody is awarded to one parent, the other parent is usually entitled to visitation rights, unless there is some reason not to – such as a history of abuse or neglect.
- Sole Legal Custody. In cases where the court determines that one parent is abusive, unfit, irresponsible, or unable to make sound decisions about the child's care and welfare, the court may award sole legal custody to the other parent.
Types of New Jersey Custody Orders
There can be more than one custody order issued by a court during the course of divorce proceedings. Again, this is because courts are primarily concerned with what's in the best interest of the child, and they will issue temporary orders to make sure the child is cared for until the divorce is final.
The three types of custody orders that New Jersey courts will issue are emergency, temporary, and final.
- Emergency Custody Order. An emergency custody order may be issued very quickly after one parent asks for it and, in many cases, even before the other parent can be heard. As its name suggests, it's meant to protect children in dire situations where there is a credible allegation of abuse or neglect or that the other parent will take the child and leave New Jersey. Emergency orders typically only last for a few days until a hearing can take place and a temporary order can be put in place.
- Temporary Custody Order. A temporary order may be issued during the course of the divorce proceeding and will be replaced by a permanent order when the divorce becomes final. In many cases, the temporary order will award one parent sole physical custody but will provide the other parent with visitation rights.
- Final Custody Order. This is an order that is designed to stay in place until the child turns 18 or until one or both parents ask the court to revise it. It's not unusual for parents to make these kinds of requests as the child grows or as the parents' circumstances change.
When Can a Child Decide Who to Live With?
Until the child turns 18, they don't have complete rights to decide who they want to live with. However, as they age and mature, a court is likely to give their preferences more weight than when they are younger. It's not unusual for a middle- or high-school-age child to ask a court to modify a custody order to give the other parent physical custody or sometimes to modify the terms of the legal custody order as it might relate, for example, to the decision about where the child is to attend school.
The Court's Role in Making Custody Determinations
New Jersey law specifically states that when making custody decisions, “the rights of both parents shall be equal.” Courts are not supposed to make assumptions about which parent should have physical or legal custody.
In practice, however, New Jersey courts often select a “50/50” custody arrangement, where the court believes it's in the child's best interests. The idea is that it benefits the child to spend an equal amount of time with each parent to help the child maintain a strong bond with both. That said, each situation is different, and depending on the family, a court may make a different custodial decision – again, where it believes it's in the child's best interests.
How Courts Determine Child Custody
While a 50/50 split may seem to be a fair way to resolve custody issues, as noted, that's not always going to be in the child's best interests. New Jersey law gives courts a number of factors that they must consider when resolving custody issues. These include:
- Any history of abuse in the parent's relationship
- Any history of domestic violence
- What the child prefers, if the child is mature enough to be able to express a reasoned preference
- Any criminal history involving one or both parents, particularly where the crime relates to sexual abuse or domestic violence
- Mental health concerns involving one or both parents
- Drug or alcohol dependence
- Which party is able to provide a safe and stable environment
The court may consider other factors, including any other factor that may have a bearing on the welfare of the child.
Will Siblings Be Placed Together?
Courts will generally try to place siblings together in the same home. This is consistent with a 2017 report published by the New Jersey Department of Children and Families, which found (among other things) that when siblings involved in divorce cases were placed together, it created a more supportive and stable environment for the children than if they were separated.
The Child Custody Process in Hudson County, NJ
In Hudson County, the Family Court division of the Hudson Superior Court hears divorce cases, including issues related to custody, child support, parenting time, and other family issues. The courthouse is located in Jersey City. As noted, the court is going to first be guided when deciding child custody issues by what it determines the best interests of the child are.
The steps of a child custody case in Hudson County will typically be as follows:
- File for Custody. One parent can file for custody with the Hudson County Family Court. In emergency cases, the application for an emergency custody order may be heard by a judge that same day. In less critical situations, the request for child custody can be included as part of the divorce complaint.
- Parenting Plans. Where possible, custody generally works best where the parents are able to agree on physical and legal custody arrangements, provided the court finds the agreement to be in the child's best interests. A written parenting plan will consider and describe specific details of how the parents are going to proceed with physical and legal custody and include visitation times and arrangements for school breaks and holidays. The judge will review the agreement and may or may not make changes to it, depending on what's in the child's best interests. In most cases, particularly where the parents are represented by experienced family law attorneys, the judge will agree with what the parents have agreed to.
- Mediation. Sometimes, parents can't reach an agreement on their own, even with the help of their attorneys. The Hudson County Family Court may suggest using a mediator, who is someone experienced in divorce cases and trained to help divorcing parents reach an agreement that's acceptable to each of them. If mediation isn't successful, the Family Court judge may conduct a custody evaluation. A custody evaluation involves interviews of both parents and the child by a mental health professional, who then provides the judge with a recommendation concerning the arrangement that the professional believes to be in the child's best interests. Because a custody evaluation and the hearing that follows take the custodial decision out of the hands of the parents and place it entirely with the court, it can be a stressful and uncertain situation. This is why it's generally best for the spouses to work hard to reach an agreement on custody.
- Appeals. It is possible to appeal a custody order. The standards are high, however, and may first involve filing a motion with the Family Court before appealing to the Superior Court. The Lento Law Firm Family Law Team can help you understand the appeal process and determine whether an appeal may succeed in your particular situation.
Modifying Custody Agreements
Because a custody agreement is ordered by the court, it's not a good idea to simply change how physical or legal custody is being handled without asking the court for permission. It's not unusual for custody arrangements to change, but the way to do it is with a motion to the court to modify the existing custody order.
This allows the judge to consider whether the proposed change is in the child's best interests, and it protects the parents from a finding that they have violated a court order.
Violating a Custody Order
For the same reason you don't want to change custody arrangements without court permission, you don't want to violate a custody order for any other reason. In New Jersey, that's considered “Interference With a Custody Order” and is a criminal act. You can be accused of this if you
- Detain or conceal your child from the authorities or your ex-spouse
- Neglect your child or allow them to engage in dangerous activities
- Fail to return your child to your ex-spouse when required to do so
- Take a child out of New Jersey or the US without permission
A parent who violates a custody order may be charged with a third-degree offense or second-degree if the offense involves taking the child out of the US without permission.
Do I Need an Attorney for a Child Custody Matter?
It's possible to file and process a child custody request or to reach a custody agreement on your own without a lawyer. But as with any situation where there are laws, rules, regulations, and procedures in place, it can be very helpful to work with experienced counsel who has done this sort of thing before. In particular:
- Custody laws and court rules and procedures are complicated. Time limits often apply at certain points in the proceeding, and an attorney can help you make sure you meet those deadlines and that you file the proper document at the right time.
- Custody agreements can have long-term effects that may not be immediately obvious if you are trying to do one yourself for the first time. An experienced attorney can help anticipate problems before they arise and make sure that the agreement covers those anticipated issues.
- If you can't come to an agreement, you'll likely end up in front of a judge. In that case, evidentiary rules will apply to your situation, and an attorney can help you make sure that your arguments are supported by the kind of evidence that the court will allow and will consider.
The Lento Law Firm Family Law Team can help you understand your rights and navigate the sometimes confusing territory of the Hudson County Family Court in your custody and divorce proceedings.
The Lento Law Firm Family Law Team Can Help You With Your Hudson County NJ Custody Case
The Lento Law Firm Family Law Team has years of experience helping parents involved in custody proceedings in Hudson County as well as all over New Jersey. We understand the laws, the court rules and procedures, and the standards that apply in child custody cases. Just as importantly, we understand what a difficult this time this may be for you and for your family, and we will evaluate your case, explain your options, and help you make sure that your child's best interests are taken into account in any custody matter we help you with.