It can be one of the most hotly-contested topics of any divorce proceeding, or it can be the one area where the divorcing parents are able to put aside their differences and reach an agreement. In either case, child custody issues are a major focus of any divorce proceeding, and if you're going through a divorce, it's important to understand what those issues are and how courts in Passaic County, New Jersey, will resolve them.
New Jersey has laws that specifically address what factors judges must consider when deciding who will have custody of the children of a divorcing couple. To a great extent, the focus of these factors is on what is in the best interests of the children. This can lead to some difficult decisions that one or both of the divorcing parents may disagree with. On the other hand, it is often possible for the parents to reach an agreement that takes the best interests of the children into account, and in many cases, courts will approve these arrangements when issuing child custody orders.
Working with an experienced family law attorney from the Lento Law Firm Family Law Team can help. Our attorneys understand how New Jersey courts typically decide child custody issues, including the factors they consider and the legal standards they apply when making those decisions. This experience can help you propose child custody terms that are in the best interests of your children and that are more likely to be approved by the judge. We have created this guide to give you a better understanding of New Jersey's child custody laws and practices. Once you've read through this, call us at 888.535.3686 or use our online contact form to schedule a confidential consultation with one of our family law attorneys.
What Is Child Custody?
Child custody is the term used to describe who the child of a divorcing couple will live with. It also describes which parent will make important decisions about the child's upbringing. These are two separate issues and are sometimes resolved differently. For example, the child may live with one parent almost full-time, but both parents may be responsible for making decisions about how the child will be raised. As noted above, the key consideration when a court makes child custody decisions is on what is in the best interests of the child.
When deciding child custody issues, courts will address the following:
- Who will the child live with? This addresses which parent will be responsible for caring for the child day-to-day, making sure they are fed, clothed, and housed; that they attend school regularly; that they get to their activities and checkups and anything else they're involved with.
- Who will make major decisions about the child's upbringing? This includes issues such as where the child will attend school, whether and to what extent they will practice a particular religion, important choices regarding the child's medical and dental care, and other decisions like those.
Many of the laws relating to child custody are set forth in Title 9 of the New Jersey Statutes. These describe the powers courts have when making decisions about child custody as well as the factors the judge is required to consider when making those decisions. They also cover other aspects of divorce proceedings. The important thing to understand is that no matter what one parent or even both parents want when it comes to child custody, the most important consideration for the judge is going to be what will be in the best interests of the child.
Child Custody and Child Support
Child custody is not the same as child support. Child support issues may have some bearing on child custody decisions, but for the most part, deciding which parent is going to be responsible for caring for the child is considered separately from deciding which parent will be responsible for paying for what percentage of the cost of providing that care. It's very possible and not at all unusual for one parent to have primary physical custody of the child and for the other parent to make child support payments to the parent who has physical custody. This is because one parent may be better suited to caring for the child, while the other parent may have a higher income or more assets, and so is better able to make support payments.
Rights of Grandparents
Grandparents sometimes are awarded custody in New Jersey divorce cases, but typically only in cases where the court decides that neither parent is able to care for the child. For example, if one parent is in jail and the other parent has significant physical or mental health issues that prevent them from caring for the child, grandparents may be awarded custody.
Otherwise, where one or both parents have custody of the child, grandparents may be able to ask the court to order the parents to allow the grandparents to visit with the child from time to time. This is not the same as a custody order, however, because the grandparents do not have the power to make decisions about how the child will be cared for or raised.
Types of Child Custody in NJ
The two types of child custody that courts are responsible for are physical custody and legal custody. The two are not the same, but both need to be addressed so that there is an understanding of who is responsible for what when it comes to the immediate and long-term needs of the child.
- Who the Child Will Live With – Physical Custody. Physical custody deals with the issue of which parent the child will live with. The parent with physical custody of the child is the one who takes on the responsibility of caring for the child on a daily basis, making sure the child is dressed and ready for school in the morning and that they have their breakfast, lunch, and dinner, that they keep themselves clean, that they attend any activities outside of school, and that they have a safe place to sleep at night.
- Caring for the Child – Legal Custody. Legal custody deals with longer-term issues; where the child will attend school, what doctors or dentists the child will see, whether the child will practice a religion and if so, how that will work in terms of the child attending services or religious training.
Custody decisions are not always either-or. In many cases, the judge will decide that what's in the child's best interests is a shared custody arrangement.
- Joint Physical Custody. This happens when both parents have defined times when the child is to live with them (as opposed to visit). For example, one parent may have physical custody during the school year and the other during significant school breaks. Parents who live close together may have physical custody every two weeks, with the child moving from one home to another. Again, whether a judge will agree to this kind of arrangement depends heavily on what the judge feels is in the best interests of the child.
- Joint Legal Custody. This happens when the court determines that both parents will have a say in making important decisions about how the child is to be raised. In situations where they're unable to agree, the court is available to resolve the dispute.
In some cases, the court will only award custody to one parent. There can be any number of reasons for a judge to make that decision. If there has been a history of abuse in the relationship, whether spousal or child abuse or if one parent is in custody or has significant alcohol or drug abuse issues, the court may decide that the child's best interests lie with the other parent having sole custody. This, as with other child custody arrangements, can take two forms.
- Sole Physical Custody. Only one parent has physical custody of the child. The other parent may be granted visitation rights, which, depending on the circumstances and history, may be supervised visits.
- Sole Legal Custody. Only one parent may make significant decisions about how the child should be raised. Sole legal custody may be awarded when the other parent has serious mental health issues or a history of abusing or neglecting the child.
Types of NJ Custody Orders
There are three types of custody orders issued in New Jersey: emergency, temporary, and final.
- Emergency Custody Order. A court may issue an emergency custody order even before a divorce proceeding is filed. Typically, this happens in situations where there is a risk that the child will be taken out of New Jersey by the other parent or when the behavior of the other parent is endangering the child's welfare. The court may issue an emergency custody order without holding a hearing but will then schedule a hearing so that the other parent can contest the order if they choose to do so.
- Temporary Custody Order. This is an order that will remain in place while the divorce proceedings are working their way through the court before the divorce is final. The temporary custody order may be based on an agreement between the parents or upon the court's decision after a hearing or may be based on a combination of what the parents agree upon and what the court believes to be in the best interests of the child.
- Final Custody Order. The court will issue a final custody order as part of the final divorce decree. The final order may be the same as the temporary one or may change depending on the situation. If the divorced parents want to change custody arrangements in the future, they will need to ask the court to modify the final order, or they risk being in violation of a court order.
When Can a Child Decide Who to Live With?
Children under the age of 18 don't have the right under New Jersey law to decide which parent they will live with. As children mature, however, they become increasingly able to make sound decisions about their own custody arrangements, and judges are free to consider the child's wishes when deciding whether to modify a final custody order.
The Court's Role in Making Custody Determinations
Judges are required by law to treat both parents equally when making a decision about custody. Neither parent is to be given any preference simply because of their role as mother or father, for example. That doesn't mean that a judge won't consider the family history of one parent being the primary day-to-day caregiver where that is the case.
In many cases, courts in New Jersey will make a 50/50 decision on custody issues, where that decision is in the best interests of the child. The goal in these cases is to make sure that the child continues to have a strong bond with each parent. Not every case will result in a 50/50 child custody decision because there are many factors that go into child custody determinations.
How Courts Determine Child Custody
Judges must consider a list of factors when making child custody decisions. These include:
- Whether one parent is in a better position than the other to provide a safe and stable environment for the child
- Whether one parent is alcohol- or drug-dependent
- Any history of child abuse or domestic violence in the family
- The criminal history of either parent, especially where it involves sexual abuse, child abuse, or domestic violence
- For a child that is old enough, what is the child's preference
- Any other factors that the judge believes will bear on what decision would be in the best interests of the child
Will Siblings Be Placed Together?
Generally, judges will try to place siblings together because studies show that siblings placed together tend to experience a more stable and supportive environment than when they are placed apart.
The Child Custody Process in Passaic County, NJ
- File for Custody. This can be part of a divorce complaint but may be a separate filing, especially where an emergency custody order is requested. Either parent can ask a judge in the Family Division of Passaic County Superior Court to issue a custody order.
- Parenting Plans. Courts encourage divorcing parents to present the judge with a complete parenting plan, one that considers and addresses all of the important child custody issues that a typical custody order will address. The court will review this in light of what's in the child's best interests. While coming to an agreement on a parenting plan can take a lot of work, the benefit is that a well-thought-out plan will be one that is in the child's best interests, that both parents and the judge agree upon, and that keeps the child custody decisions primarily between the parents. Working with an experienced family law attorney can help considerably with putting together a parenting plan that the judge is likely to approve.
- Mediation. Where parents can't agree on custody issues, the court may order a mediation, where the parents work with a trained mediator to try to come to an agreement on custody terms. In some cases, where this isn't successful, the judge may order a custody evaluation – that's where a mental health professional interviews the family and makes a recommendation to the judge about what the child custody arrangements should be.
- Appeals. In some cases, it may be possible to appeal a custody order. Whether this makes sense given the situation is something an experienced attorney from the Lento Law Firm Family Law Team can help you decide.
Modifying Custody Agreements
It's important to understand that custody orders are just that – court orders. If you disobey a court order, even inadvertently, you can be held in contempt or even prosecuted in cases where you willfully violate the order. That's why if you want to make a change to your child's custody arrangements – even where both parents and the child agree – you need to ask the court to modify the order. This allows the judge to decide whether the proposed change is in the child's best interests.
Violating a Child Custody Order
As noted above, violation of a custody order may be a crime, particularly if you hide your child from your ex-spouse or leave New Jersey or the United States with your child without the permission of your ex-spouse (and sometimes the court, if the custody order requires it). If convicted, you could be guilty of a third-degree offense or, where you took your child outside of the country, a second-degree offense.
Do I Need an Attorney for Child Custody Matters?
It's possible to seek custody without the help of a lawyer. But you are far less likely to make mistakes in the process of applying for an order if you are working with an experienced family law attorney. There are many different types of documents that need to be filed in custody cases and particular types of evidence and information that need to be provided to the judge so that the judge can fairly decide what type of order will be in your child's best interests. An experienced family law attorney can help you make a request that is in your child's best interests and is more likely to be granted by the judge.
Your lawyer can also help you anticipate issues you may not have thought of when requesting a particular custody order – ones that may arise months or years in the future. If there is a hearing on your request for a custody order, your attorney will prepare you for it and will help you make as strong an argument as possible for your requested custody order.
The Lento Law Firm Family Law Team has years of experience helping parents with custody issues in New Jersey. We can make sure you understand the process and what your rights are throughout.
Lawyer for Child Custody Cases in New Jersey
The attorneys that make up the Lento Law Firm Family Law Team can help you with your child custody questions and custody order requests, as well as with divorce proceedings. We know the law, the procedures, and the courts in New Jersey, including in Passaic County, and we will help you understand what's going to happen next, when it's going to happen, and how it's going to proceed. We'll help you gather all of the information you need to make your case and will fight for your rights and the rights of your child or children throughout the process. We understand how difficult custody and divorce cases are for everybody involved. This is a stressful time for parents and children, and one of our goals is to reduce that stress by making sure your questions are answered and that you know that we are on your side.