In any parental separation or divorce, the question of who gets custody of the children is almost always the most contentious issue to be addressed--not just for the parents but also for the children. When parents cannot make these decisions amicably, it often becomes the responsibility of the courts to establish custody arrangements. These determinations are also often fraught with contention because while the courts are ruling based on the best interests of the child, the parents often disagree with the courts (and each other) about what constitutes "best interests."
If you're locked in a difficult child custody battle in Mercer County, NJ, you need the experience of a skilled New Jersey family law attorney who can help you make the right decisions for your child and family. Attorney Joseph D. Lento and his Family Law Team are well-equipped to handle all family law matters, including child custody agreements, in Mercer County, NJ. To schedule a consultation, call (888) 535-3686 or contact us online.
An Overview of Child Custody Laws
New Jersey child custody laws can be found in Title 9 of the New Jersey Statutes. Child custody pertains to the allocation of parental responsibilities for raising and caring for a child. There are effectively two key elements involved in deciding custody: where the child will live (physical custody), and who has the authority to make significant decisions about the child's upbringing (legal custody).
Child Custody versus Child Support
It's not uncommon for parents to share custody as well as financial responsibilities to support their children, but from a legal perspective, we need to differentiate between the concepts of child custody and child support. Child custody 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, on the other hand, addresses the financial responsibilities of the non-custodial parent toward the child's upbringing. While child support may be relevant in custody cases, it should not be confused with child custody, as they are separate legal provisions.
Do Grandparents Have Custody Rights in New Jersey?
By default, parents' rights supersede grandparents' rights when it comes to custody of children. However, in exceptional cases (for example, if a parent is unfit or unable to care for their child), grandparents may petition the court for child custody. More commonly, grandparents go to court to pursue visitation rights--that is, having the right to spend time with the grandchild without obtaining full custody. To secure visitation rights, grandparents must demonstrate that it is in the child's best interests, as these rights are not granted automatically.
Categories of Child Custody in New Jersey
New Jersey recognizes two primary types of child custody: physical custody and legal custody.
Physical Custody: Where the Child Lives
Physical custody pertains to the child's living arrangements and daily care. A parent who is granted physical custody is responsible for meeting the child's everyday needs and providing routine care until they turn 18.
Legal Custody: Decisions Regarding Upbringing
Legal custody grants the authority to make significant decisions on behalf of the child concerning their upbringing. Although there are no specific legal guidelines for these decisions, they typically involve matters such as the child's school, healthcare choices, and religious upbringing.
Joint or Sole Custody
Custody (both physical and legal) may be awarded either to both parents jointly (joint custody) or to only one parent (sole custody).
Joint custody involves both parents sharing the responsibility of raising the child. Joint physical custody means the child divides their time living with each parent; with joint legal custody, this means the parents have a consensus on making important decisions for the child.
Joint custody does not always mean an equal division of time but rather 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 grants one parent exclusive rights to live with the child (physical) or make decisions on their behalf (legal). With sole physical custody, the non-custodial parent will receive visitation rights unless there are harmful issues like abuse or neglect. Sole legal custody is typically awarded to one parent if they prove to the court that the other parent is abusive, irresponsible, or otherwise unfit to make decisions concerning the child.
Types of Child Custody Orders in New Jersey
When determining child custody, the court issues orders that establish which parent is responsible for the child's care and, in some cases, where the child will live. These orders can be classified into three main types: emergency, temporary, and final custody orders.
- Emergency Custody Order: Short-term in nature (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 when there is an immediate danger to the child.
- Temporary Custody Order: This initial order remains in effect until a final custody order hearing is held. It typically awards one parent sole physical custody and the other parent visitation rights until the final hearing takes place.
- Final Custody Order: Intended to last until the child turns 18 or another 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 before a hearing to determine final custody takes place. Some custody cases involve issuing all three types of orders sequentially (emergency, temporary, and final).
Factors in Determining Where the Child Will Live
In New Jersey, children are considered minors until they reach the age of 18, also known as the age of majority. Minors do not have the legal authority to choose their living arrangements. However, during the custody decision-making process, the court will take into consideration the child's preferences along with other factors such as their age, health, well-being, the parent's capacity to provide care and any history of domestic violence or abuse. While the court's final decision is based on the best interests of the child, the child's input can be instrumental in determining their living situation.
As the child gets older, their opinion holds more weight in the court's decision. (For example, the judge will weigh a 15-year-old child's living preference more substantially than a 5-year-old's preference.) Although the preferences of younger children may be considered, the court will prioritize other factors in determining the child's best interests since young children often lack the emotional maturity to express a well-founded preference.
The Court's Role in Custody Decisions
Courts are responsible for ensuring that both parents receive fair and impartial treatment throughout the child custody process. They cannot make assumptions about which parent the child should live with by default (by gender, for example). Instead, they must consider various factors, such as each parent's ability to provide a stable and safe environment, the child's relationship with each parent, and the child's own desires. The ultimate goal is to establish the most suitable arrangement that serves the child's best interests, which may require a nuanced approach considering each case's unique circumstances.
In many cases, the court may favor an equal custody arrangement, allowing children to maintain strong and loving relationships with both parents. However, a 50/50 custody split may not be appropriate for every family, so the court must base its decision on relevant legal provisions.
Factors Considered by the Court in Child Custody Decisions
When deciding on child custody arrangements, the primary determinant is what serves the child's best interests. While this often results in a 50/50 custody arrangement, it is not always the case. The court must consider various factors, such as:
- History of abuse by either or both parents
- History of domestic violence in the relationship
- Mental or psychological concerns
- History of drug or alcohol problems
- Criminal records, including convictions for sex offenses or domestic violence
- Each parent's ability to provide a safe and stable environment for the child, among other factors
- The child's preference, if they are mature enough
Some factors carry more weight than others. For example, convicted sex offenders are typically denied custody due to the high risk of harming children. Similarly, a history of domestic violence can significantly impact the court's decision to grant custody as it raises concerns about whether the child will be raised in a safe and nurturing environment.
Keeping Siblings Together
New Jersey courts hold the position that siblings should be kept together in physical custody arrangements whenever possible. This position is based on a 2017 report by the New Jersey Department of Children and Families that concludes that keeping siblings together in custody arrangements creates a more supportive and stable environment.
Child Custody Procedures in Mercer County, NJ
In Mercer County, matters related to divorce, child custody, visitation rights, domestic abuse, etc., are handled by the Family Division of the Mercer County Superior Court in Trenton. The standard process for child custody moves through a set of steps as follows:
Filing for Custody
A parent may file a custody complaint with the Family Division via the following contact information:
Mercer County Civil Courthouse
175 South Broad Street
Trenton, New Jersey 08650-0068
609-571-4200 ext 74380
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
Ideally, the state wants parents to 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 approve the plan unless it is deemed not in the child's best interest.
If parents cannot agree on a parenting plan, the Family Court recommends mediation to help the parents reach an agreement outside of court. A custody evaluation may be conducted to help determine the child's best interests if an agreement cannot be reached in mediation.
If the parents cannot reach an acceptable agreement either between themselves or in mediation, 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.
If you disagree with the judge's ruling regarding custody or believe your rights have been violated, you have the right to appeal a custody order, either by filing a motion with the Family Court or appealing to the Superior Court.
Modifying Custody Agreements
In any family, circumstances change over time. 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 because of a substantial change in circumstances.
Consequences of Violating a Child Custody Order
Violating or interfering with a child custody order is considered a criminal offense under New Jersey law. Some common examples of custody violations include:
- Taking the child across state lines without permission
- Failing to return the child to the other parent as specified in the custody agreement
- Concealing or detaining the child from the other parent
- Allowing the child to participate in dangerous activities
Depending on the severity of the violation, breaking a custody order can lead to criminal charges ranging from second-degree to third-degree offenses. Additionally, such actions may negatively impact your custody rights and future interactions with your child.
The Importance of Hiring an Attorney for Child Custody Cases
While hiring an attorney is not legally required for child custody issues, you will typically fare better in resolving custody concerns with the help of an experienced attorney. A good attorney will:
- Help you navigate the complicated legal process of child custody, including making sure all paperwork is filed properly by the deadlines
- Help you evaluate the pros and cons of any custody agreement so you aren't blindsided by unforeseen consequences
- Assist you in building a strong, evidence-based argument if your custody dispute goes to court.
The Lento Law Firm: Your Ally in New Jersey Child Custody Matters
Dealing with family law matters involving child custody, visitation rights, and related issues can be daunting and complex--and children often get caught in the crossfire. Attorney Joseph D. Lento and his Family Law Team understand what's at stake for you and your child and are dedicated to advocating for your child's best interests. To schedule a case consultation, contact us online or call us at (888) 535-3686.