A divorce can be one of the most stressful life events that anyone will ever go through. In fact, according to a frequently-cited academic study, divorce is the second-most stressful “life change” event that can happen to someone. If you're going through a separation or a divorce, this probably isn't news to you. You and your spouse have no doubt already gone through a lot to get to the point of filing for divorce, and now that your divorce is moving forward, you're having to deal with all of the details that it requires.
Financial arrangements, housing concerns, and, of course, how the two of you are going to care for your child or children are all factors that need to be addressed before your divorce is final. Child custody can be one of the most difficult of these. New Jersey has laws that specifically address how child custody will be resolved in divorce proceedings, which is why having the help of an experienced family law attorney can make it so much easier to arrive at a child custody arrangement that works for both spouses and is in the best interests of the child.
The Lento Law Firm Family Law Team has compiled this guide to help you understand the child custody laws and practices in New Jersey. If you have questions after reading this or need help with your divorce, contact us at 888.535.3686, or use our online form to schedule a confidential consultation.
What Is Child Custody?
Child custody refers to who the child will live with and who will make important decisions about the child's care and upbringing. In many cases, these two questions are treated separately; the child may live for the most part with one parent, but both parents may share in decisions relating to how the child will be raised. In all cases where a court is ruling on child custody agreements or disputes, the court is required by New Jersey law to focus on what is in the best interests of the child.
The two main issues that child custody addresses are:
- Who the child will live with; which parent will be responsible for the day-to-day care of the child, and
- Who will make decisions about important aspects of the child's care, such as where the child will go to school, what religion the child will practice, what doctor and dentist will provide health and dental care, and other issues.
Some of the key laws dealing with child custody issues are found in Title 9 of the New Jersey Statutes. These cover many child custody issues, including the powers that courts have to make decisions about child custody and what guidelines the court must use in doing so. These laws also cover other issues that typically come up in divorce cases. As noted, though, no matter what one parent or the other parent wants, or even what both parents may agree to with respect to child custody, the court is always going to be guided by what is in the child's best interests.
Child Custody and Child Support
Child custody and child support are two different things. While they may interrelate, the question of which parent is to care for the child is usually a separate decision from which parent is going to be responsible for paying for what portion of that care. For example, one parent may have primary physical custody of their child, and the other parent may be responsible for a substantial portion of the costs associated with caring for and raising the child. While the question of who is better able to support the child is somewhat relevant to resolving child custody issues, in most cases, the court will treat it as a separate issue.
Rights of Grandparents
New Jersey law doesn't ignore the concerns of grandparents of children involved in a divorce. While the right of a grandparent to see their grandchild isn't automatic, there is a way for grandparents to ask the court to issue an order requiring the parents to allow visitation.
The fact is that in most cases, the divorcing parents will be able to agree on when and how grandparents will be able to visit, leaving the court order option for situations where an agreement can't be reached.
It's important to note that “visitation” rights are just that – the right to visit with a child at certain defined times and under certain circumstances. Visitation rights do not include the right to make any important decisions about the child's care or future.
In rare cases, grandparents may be awarded custody of the child of a divorcing couple. There need to be extenuating circumstances for this to happen, typically ones where neither parent is physically or mentally able to care for the child. In deciding these cases, courts will again be guided by what is in the child's best interests.
Types of Child Custody in NJ
As noted above, there are two factors to the child custody decision: Physical Custody and Legal Custody. They are quite different from each other, but both need to be addressed when arriving at custody decisions involving the child of a divorcing couple.
- Physical Custody. This answers the question of who the child will live with. That parent will also be responsible for caring for the child on a day-to-day basis: providing the child with a place to live, clothes to wear, food to eat; making sure the child gets to and from school and after-school activities; and all other aspects of the regular daily care of a child.
- Legal Custody. This answers the question of who makes important decisions about how the child is to be raised. These include where the child will attend school, what religion, if any, the child will practice and how frequently the child will be exposed to it, and especially in critical health care situations, what kind of care the child will receive.
It's not unusual for parents and courts to grant joint custody in divorce cases. In these cases, both parents will share the responsibility of raising the child.
- Joint Physical Custody. When parents have joint physical custody, they share in the day-to-day responsibilities of caring for the child. How this works depends on the situation and, again, what the court believes is in the best interests of the child. Parents who live close together may be able to have physical custody of their child every other week; in other situations, one parent may have physical custody for the majority of the time, say the school year, and the other may have custody during breaks. Again, the focus is always on what is in the best interests of the child.
- Joint Legal Custody. Parents with joint legal custody agree to cooperate in making important decisions about how their child will be raised. In this kind of arrangement, neither parent has the final say. In cases where parents can't agree, they can present the dispute to the court, and the court will issue an order that the parents must follow.
In many cases, one parent may have sole physical custody of the child, but both parents will share joint legal custody. This can happen, for example, in cases where one parent is incarcerated or is physically unable to care for the child.
Sometimes, only one parent will be awarded custody. There are a variety of reasons for this happening, including where there is a demonstrated history of abuse or neglect by one parent, but those aren't the only reasons. As noted above, if one parent is in jail, the other may be awarded sole custody, at least until such time as the incarcerated parent is released.
- Sole Physical Custody. In most cases where sole custody is awarded to one parent, the other parent is granted visitation rights. In cases where the other parent has abused or neglected the child, visitation rights may be denied, or the court may order supervised visitation.
- Sole Legal Custody. If one parent is unable to make decisions relating to the welfare of the child for whatever reason, including in cases where the parent has abused or neglected the child, the court may award sole legal custody to the other parent.
Types of NJ Custody Orders
During the course of a divorce proceeding, a court may issue several types of custody orders and may modify any order once it's been issued. Because of the strong concern courts have for the best interests of the child, a custody order may even be issued on an emergency basis before a divorce complaint has been filed. The types of custody orders a New Jersey court can issue are as follows:
- Emergency Custody Order. This order can be issued even before a divorce complaint has been filed based on an emergency request filed by one parent. The court may issue an emergency custody order without hearing from the other parent but will usually schedule a hearing soon thereafter so that both sides can appear and state their cases for or against the custody order. Typical reasons for granting an emergency custody order are where one parent has threatened to take the child outside of New Jersey or the country without the permission of the other parent or where one parent has abused or neglected the child.
- Temporary Custody Order. A court will often issue a temporary custody order that is in effect while the divorce proceedings are still pending before the divorce is finalized. A temporary order may be based on what the divorcing parents agree to, or it can be the result of a contested hearing where both parents argue in favor of the type of custody arrangement that they want the court to put in place. In many cases, one parent will have sole custody during the divorce proceedings, and the other will have defined visitation rights. The temporary custody order will stay in place until it's replaced by a permanent one.
- Final Custody Order. This order is issued as part of the final divorce decree. It's effective until the child reaches the age of 18, but it's not unusual for one or both parents to ask the court to modify the final custody order as the child grows older and their or the parents' situations change.
When Can a Child Decide Who to Live With?
Children under the age of 18 do not have the right to decide who they will live with; once they are 18, however, they are no longer affected by the final custody order and can make their own decisions. That said, courts will give an increasing amount of weight to the child's wishes as the child matures and is better able to explain their reasoning for requesting a change in either physical or legal custody. What is important is for parents to be careful about privately changing the child's custody arrangement without asking the court. This risks violating the court's custody order, and because the focus again is on what's in the child's best interests, the court may not agree with the proposed custody change even if both parents and the child do.
The Court's Role in Making Custody Determinations
New Jersey law requires the court to treat both parents equally when making custody decisions. Courts are not supposed to assume, for example, that the mother is always the best choice for physical custody or that the father is always the best choice for legal custody.
That said, courts in New Jersey frequently adopt a “50/50” custody approach, again in those situations where doing so is in the child's best interests. This is based on the belief that children benefit when they can spend a roughly equal amount of time with each parent so that they continue to have a strong bond with each one. But because each situation is different, there is by no means any guarantee that a court will decide that a 50/50 arrangement is in your child's best interests in your divorce case.
How Courts Determine Child Custody
New Jersey law provides courts with a list of factors that need to be considered when making child custody decisions. These include the following:
- Is there a history of abuse or domestic violence in the divorcing parents' relationship?
- If the child is mature enough to state a preference, what is the child's preference?
- Does either parent suffer from any serious mental health issues that could affect the child's care?
- Is one parent better able to provide the child with a safe and stable environment than the other?
- Is either parent dependent on alcohol or drugs?
- Does either parent have a criminal history, particularly a criminal history involving sexual abuse or domestic violence?
In addition, the court may also consider any other factor that may have a bearing on the welfare of the child.
Will Siblings Be Placed Together?
Courts generally attempt to make sure that siblings are able to continue to live together. Studies have shown that siblings in divorce cases who are placed together experience a more supportive and more stable environment than do siblings who are separated as a result of the divorce.
The Child Custody Process in Morris County, NJ
Divorce cases filed in Morris County, NJ, are heard in the Family Court division of the Morris County Superior Court in Morristown. The Morris County Family Court handles divorce, child support, child custody, parenting time, and other issues related to families or the family relationship.
These are the typical steps of a child custody case in Morris County:
- File for Custody. Either parent can file for custody with the Morris County Family Court. Emergency applications for custody may be heard by a judge the same day they are filed. In most cases, however, the request for custody is included as part of the divorce complaint.
- Parenting plans. As a practical matter, a custody arrangement that both parents can agree to will generally work better than one that is fashioned by the court because the parents couldn't come to an agreement. Parenting plans take work, though; they need to consider and address specifically how the parents are going to handle physical and legal custody. They should include specific information about which parent has physical custody at various points during the year, including during school breaks and important holidays. Judges will review the proposed parenting plan and may agree to it or may modify it – again, based on what the court believes is in the best interests of the child. A parenting plan that has been agreed to with the help of experienced family law attorneys on both sides is more likely to be agreed to by the court because experienced attorneys understand the factors that the court is going to use when it reviews the proposed plan.
- Mediation. When parents are unable to reach an agreement on custody issues, the court in Morris County may suggest getting a mediator involved. This is someone who has been trained on family law issues and how to help divorcing parents resolve them. If the mediation isn't successful, the court may order a custody evaluation. This involves interviews with both parents and often the child by a mental health professional who then makes recommendations to the court about what the terms of the custody order should be. The court may then hold a hearing to help it make a decision on the terms of the custody order. It can be upsetting and stressful to have custody decisions taken away from you and left to the court to decide. This is why it's almost always better for divorcing parents to be able to agree on all or most of the important aspects of the custody order.
- Appeals. In unusual circumstances, it may be possible to appeal the terms of a custody order. Appeals of this type can be difficult to win, and you may need to file a motion with the Family Court first before filing an appeal with the Superior Court. The Lento Law Firm Family Law Team can help you evaluate your situation to determine whether an appeal might be effective.
Modifying Custody Agreements
Custody orders are just that – court orders. Violating the terms of one, even when both parents are in agreement, technically violates the court order. This is why it's very important if you and your spouse (and child) agree to change the way you handle custody; you need to ask the court to modify its custody order to reflect that change. This allows the court to consider whether your proposed change is in your child's best interests and avoids you inadvertently being in violation of a court order.
Violating a Child Custody Order
Violation of a custody order may result in a criminal charge. If you ignore the terms of a custody order, hide your child from your ex-spouse or the authorities, neglect your child while you have custody, or don't return your child to your spouse when it's their turn to have custody, or take your child out of New Jersey or the US without permission, you may be charged with a third-degree offense, or in the case of leaving the US with your child, a second-degree offense.
Do I Need an Attorney for Child Custody Matters?
While it's possible to navigate the divorce and custody process without the help of an experienced family law attorney, it almost always makes more sense to be working with one. Custody laws and standards and court rules and procedures are complicated. Deadlines often apply, and specific types of forms and information need to be filed with the court before a custody order can be issued. An experienced family law attorney can make sure you meet court deadlines and that the proper forms and information are filed in support of your requested order.
An experienced family law attorney can also help you anticipate issues that might arise down the road after custody is awarded and address those issues in the custody order to help avoid future disputes. You can't always think of everything, but by working with a lawyer who has helped many other divorcing parents secure effective custody orders, you can benefit from the foresight that comes with having that experience.
Finally, if you and your spouse can't agree on custody terms, you will likely end up appearing before a judge at a hearing. An experienced family law attorney will help you prepare for the hearing and make the strongest arguments in favor of your custody requests.
The Lento Law Firm Family Law Team is here to help you understand what your rights are during what can be the confusing process of seeking custody and finalizing your divorce.
Lawyer for Child Custody Cases in New Jersey
The Lento Law Firm Family Law Team have years of experience helping parents in New Jersey who are divorcing and find themselves involved in custody proceedings in Morris County as well as all over the state. We have years of experience with all aspects of divorce in New Jersey, including custody issues, and can help you protect your rights and make sure that the rights and best interests of your child or children are protected throughout the divorce process and afterward.
We also understand how difficult this is for you and your family, and we will help you understand your case, explain every step of the process, and do everything we can to help you make it through this difficult time. Call us today at 888.535.3686, or use our online contact form to set up a confidential consultation. We are here to listen and to help!