A custody battle can be a lengthy and difficult process for both parents. A parent only believes that they are doing the best for their child. However, the eyes of the court may take a different view on what is best for a child. When parents are locked in a custody battle, and no solution outside of court is in sight, the courts may intervene to determine what the resulting custody agreement should be. When a custody case makes it to the courtroom, the court will use the resources and evidence available to make a determination in the best interests of the child.
Types Of Custody
Custody in New Jersey can come in several forms. The court will grant whatever form of custody is the best fit for the situation. First, custody is divided into "physical" custody and "legal" custody. Physical custody refers to where the actual child is residing and living. Legal custody refers to the ability to make legal decisions on behalf of the child, such as decisions that pertain to education, religion, or medical needs. The two normally coincide, however, in certain cases, only one of the parents may be entitled to make legal decisions for the child.
Shared custody refers to a custody arrangement where a child's custody is shared for more than two overnight stays per week. Both physical and legal custody can be shared between parents. Typically, the state will assign one "parent of primary residence" and "parent of alternate reference," even if the child is frequently travelling between the two, or if the overnight stays with each parent are roughly equal between the two parents. This is used later to determine issues of support.
Sole custody refers to an arrangement where a child has less than two overnight stays per week with one parent. The child will live with one parent a majority of the time. It is rare that a parent retains both sole physical and legal custody. These situations usually occur if a parent displays a degree of "unfitness." Unfitness is basically when a parent, through actions and history, expresses a great potential to do harm to a child. This can include things like drug or alcohol abuse, a history of domestic violence, or history of neglecting the child. Unfitness usually leads to sole custody, however, it can potentially result in termination of parental rights in extreme cases.
In New Jersey, joint custody is when the parents have an even split between parenting time, and also work together to make decisions for the child. This can be difficult as it requires a certain degree of amicability and cooperation between the two parents. For joint legal custody, however, this may be eased by having parents designate certain decision-making responsibilities to one another. Because of this, joint legal custody can be very common.
How The Court Determines Custody
In New Jersey, parents are actually encouraged to come to final decisions related to custody themselves. Parents who undergo custody disputes are mandated to undergo a mediation session, which is sponsored and provided by the court. If the mediation does not work, then the parents will be requested to submit their own individual custody plans to the court. From these drafted agreements, the courts may choose one, or will formulate their own based upon what was drafted and submitted, or one based on what the court finds to be in the child's best interests.
Risk Assessment & Evaluations
Risk assessments and custody evaluations can be used in court to show evidence that one parent may be better or worse for a child's custody agreement. These are often paid out of pocket by the parents, though they can request that the state performs one. Risk assessments are done by the county's probation department to provide the courts with an idea of whether or not is risky for a child to live with a certain parent.
Factors Motivating The Court's Decisions
When a decision is up to the court on custody, the judge will always rule in the best interest of the child. The factors used to determine this can include:
- Cooperativeness of the parents
- Child's interaction with siblings
- Needs of the child
- Proximity of the parents to one another
- How much time the child spent with parents before separation
- History of domestic violence
- Safety of the child from abuse
- Ages of the children
- Parental employment
- Preference of the child (if they are old enough)
These factors and more all play a part in determining what type of custody, and who will hold the primary residence for the child. The court will also factor in any claims of unfitness for parenthood when considering custody.
Family Law Attorney
Matters of custody can become incredibly complicated. Dealing with figuring out who will be able to take care of a child can become an emotional struggle. In New Jersey, when a custody battle begins, parents may want to seek help early. Having a Family Law attorney early on is the best way to secure you and your family's interests in the matter. You only want what is best for your child, and a family law attorney can help protect what matters to you. An attorney involved early on can provide counsel, and representation when necessary. Together, you and your attorney can work to ensure that your child's interests are protected, and the matter of custody is handled fairly.
If you or a loved one is engaged in a custody battle, or other matters of family law in New Jersey, contact attorney Joseph D. Lento today.