One of the most difficult, and often most contentious, issues in divorce is who will have custody of the minor children. In New Jersey, there are 2 different types of child custody:
- Legal Custody:
Legal custody refers to any decisions made about a child’s education, religion, and health care.
- Physical Custody:
Physical custody refers to where a child spends their time.
The New Jersey court uses several factors to decide the best possible scenario for the custody of children. The courts will always do what is in the child’s “best interests.”
8 FAQs About Child Custody in New Jersey
1. Do parents have to resolve all of their custody issues before finalizing their divorce?
Typically, when you get divorced, if you do not have all your custodial issues resolved, then you need to have a plenary hearing, which is a limited hearing on this particular issue. That is very uncommon and atypical.
2. Does one parent need the other parent’s permission to move to another state with their children?
Under the statute, neither party can relocate the child out of the jurisdiction without either consent or a court order. That would be a modification that would warrant a modification A) a modification of the parenting time and B) potentially the modification of the custodial designation.
Typically, what happens is if one party is seeking to relocate, one party would have to petition the other, and assuming there is some agreement, they would have to petition and establish the court and establish a substantial change in circumstances to justify that relocation. Usually, we see those circumstances in the case of remarriage when you’re moving to the home state of your new spouse or job transfer in which case, you’re locating out of the state in order to facilitate the continuation of your employment responsibilities.
There are other instances when people seek to relocate such as being closer to their family or maybe the noncustodial family has very little or chooses not to exercise their parenting time, in which case the custodial parent may want to be closer to the extended family who can help them with the childcare responsibilities.
These are all potential reasons for relocation. But again, to get that relocation into the statute, you would have to have an agreement or a court order.
3. Can primary parenting rights be taken away from the parent?
The designation of the primary custodial parent can be modified if there is a substantial change in circumstances to warrant that modification. What we typically see, however, is the parties do what we call minor modifications. For example, when the child was 2, they weren’t in extracurricular activities, and now they’re 8 and they’re in three activities. That creates a change in circumstances that warrants a change in the parenting schedule.
When you’re talking about shifting the primary residential parent, that is typically a much more in-depth and substantial process because presumably it is objected to and in that case, there is going to be a trial. That’s going to be a much more involved process than a minor modification.
4. If a child-support recipient remarries, can the ex-spouse stop making child support payments?
When your spouse remarries, your obligation to your children continues. The new spouse is not responsible for the payment of your child’s expenses. You may not stop paying support due to your spouse’s remarriage.
5. What factors do New Jersey courts consider in granting custody?
New Jersey custody determinations are guided by the statute NJS9:2-4 which has a variety of factors, and these factors are defined but not limited. What that means is the court looks at these factors, but it’s not limited to only these factors.
Such factors are:
- The communication and cooperation of the parties
- The willingness to accept custody
- Any historic unwillingness to accept parenting time without substantiated abuse
- The court will look at the relationship and interaction of the child with both parents as well as siblings, any history of violence and the safety of the child or parent from physical abuse by the other parent. So, we not only look at whether the child was abused, but whether there is a history of physical abuse between the spouses.
- The court also considers the preference of the child when the child is of sufficient age and capacity to reason. There is no defined number in New Jersey of an age when that can occur. We look at the actual capacity of the child, whether the parents can meet the needs of the child in their new home and the stability of that home environment being offered.
- The quality and continuity of the child’s education is one party looking to take custody and move the child far away for instance, the fitness of the parent, the geographical proximity of the parent’s home. Again, looking at the logistical day-to-day care and ability for both parents to perform in that function.
- The extent and quality of the time spent with the child prior to and after the separation. Is one parent only getting involved after the divorce is filed, but had never previously been involved?
- The employment responsibility of both parties: both actual, meaning historic, and anticipated.
- The age and number of the children.
- Any other factor the court might look at that’s relevant to those specific parties and that specific family.
6. If one party strongly opposes the judge’s decision, can he or she appeal to have it changed?
If a party does not agree with the court’s final judgement, then within 45 days, they can file a Notice of Appeal to have the matter heard in whole, or just in that one part by the Appellate Division. This is a process that takes some time, and during that process the provisions of the judgment cannot be changed.
7. Is it better to litigate in court or to settle a case?
Almost 99% of cases settle. The reason people settle their cases is typically they want to have control of their own lives. They want to have control of their future. They want to stop the bleeding, and they want to stop the emotional difficulties relative to the breakup and division. And finally, they don’t want to leave their lives in the hands of a stranger, who may or may not ever have practiced in the area of family law or gone through a divorce themself.
And then, there’s the cost. It is much more cost-effective to settle your case than to litigate your case. If you’re going to litigate your case, it is an important thing to proceed with an attorney who knows the court system, who has tried many cases and who is proficient in articulating YOUR facts as they relate to the law.
When you’re looking for an attorney, and you know the case is not going to settle, ask the prospective attorney whether they are experienced in litigation. That’s probably the most important question you can ask in that situation.
8. Will the court consider a child’s wishes regarding which parent they want to live with?
The court, when weighing the child’s preference, will look at the child’s age, the child’s mental capacity and development. It also looks at the child’s emotional capacity and development in the litigation. Because as much as parties want to say they have not allowed their child to be involved in the litigation, the reality is that no child is exempt from turmoil between their parents.
Regardless of whether the parents live together or whether the parents think that they are sheltering their child, typically, when the court weighs the preferences of a child, the court does look at the litigation because that’s going to heavily tilt the scale against considering only the child’s preference.
If the child is 16, then the weight may carry a little higher even if there is a very litigious history. But if we’re talking about an 8-, 9- or 10-year-old, that is definitely going to be very critically analyzed.
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Child Custody, Visitation & Parenting Plan Attorneys
Our Toms River and Moorestown child custody attorneys understand that issues with child custody can be highly charged and emotional for everyone involved. Divorce is already a complex and emotionally fraught situation – adding children into the equation makes the process that much more complicated. That’s why we go above and beyond to provide compassionate guidance and assertive representation you can rely on. When you need a child custody lawyer, turn to New Jersey Family Law Group.
Contact our attorneys at Stolfe Zeigler today at 732-240-9555 to get started with an initial case evaluation.