How does a couple who are getting a divorce decide what is the best custody situation for their children? In this podcast episode, New Jersey Family Law Attorney Abigale Stolfe explains
- the different types of child custody arrangements, sole custody, joint custody and physical custody
- how the courts decide to award custody and parenting time
- how much weight the child’s wishes are given
- whether custody arrangements must be finalized before a divorce is granted
- if custody arrangements can be modified in the future
- the need for supervised visitation
- relocating a child out of state
- family and grandparent visitation rights
- whether unmarried parents have the same custody rights as married parents
- the New Jersey Child Support Worksheet
Podcast: Child Custody and Parenting Time
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Transcript
Diana Shepherd:
My name is Diana Shepherd and I’m the Editorial Director of Divorce Magazine and the facilitator here at the Divorce School. Joining me today is Abigale M. Stolfe, a family lawyer based in Toms River, New Jersey. Abigale is known for effectively litigating, negotiating and mediating complex cases, including child support, child custody and visiting or parenting plans. Today, we’re going to be talking about child custody and parenting time. Let’s get started.
Diana Shepherd:
Abigale, how does a divorcing couple decide whether sole custody or joint custody is best for their family?
Abigale M. Stolfe:
Sole custody means that one person has residential custody of the child, as well as the right to, without any consultation make all of the day-to-day decisions and major decisions for the child. The custodial parent has the right to make decisions on the child’s health, education and welfare. The other party is entitled to visitation.
Abigale M. Stolfe:
Pursuant to Beck v. Beck, joint custody is comprised of two elements; legal custody, and physical custody. Under a joint custody arrangement, legal custody, the legal authority and responsibility for making major decisions regarding the child’s welfare, is shared at all times by both parents. Physical custody, which is the logistical arrangement where the parents share the companionship of the child, under that arrangement they’re responsible for the day-to-day decisions, and they have to alternate in accordance with the needs of the parties and the children.
Diana Shepherd:
If the children split their time between two homes, I’m thinking that from what you’ve just said, it isn’t always 50/50, but can you tell us what are the most common types of arrangement for children’s living situations post divorce in New Jersey?
Abigale M. Stolfe:
What I instruct my clients to consider is not what other families do, but instead what works for their family. So in one situation where you have two rotating scheduled employees, such as nurses, EMT workers, police officers who work shifts, they may need a completely different arrangement than someone who works from nine to five commuting to and from New York City. So it’s best to look at your own individual circumstance and not what some other couple or a friend of yours might be doing.
Diana Shepherd:
What factors do New Jersey courts consider in granting custody?
Abigale M. Stolfe:
New Jersey custody determinations are guided by the statute NJS 9:2-4, 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 is not limited to only these factors. Some of these factors are the communication cooperation of the parties, the willingness to accept custody and any historic unwillingness to allow parenting time without a substantiated abuse.
Abigale M. Stolfe:
The court will look at the interaction and relationship of the child with both parents, as well as siblings, the history of domestic violence, the safety of the child, or either parent from physical abuse by the other parent. So we not only look at whether the child was abused, but whether there’s a history of physical abuse between the spouses. The preference of a child, when the child is of a sufficient age and capacity to reason. There’s no defined number in New Jersey for an age
for when that can occur. We look at the actual capacity of the child. Whether or not the parents can meet the needs of the child in their new home, and the stability of that environment being offered.
Abigale M. Stolfe:
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 parents, the geographical proximity of the parents’ 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 subsequent to the separation. So is one parent only getting involved after the divorce is filed, but had never been previously involved. The employment responsibility of both parties, both actual, meaning historic and anticipated. The age and number of the children. And any other factor the court might look at that’s relevant to those specific parties and that specific family.
Diana Shepherd:
How much weight will the court give regarding a child’s wishes regarding which parent they want to live with? And does it make a difference if the child is a teenager versus say a five year old? Do they give more weight to an older child?
Abigale M. Stolfe:
The court when weighing the child’s preference will look at the child’s age, the child’s mental capacity and development, the child’s emotional capacity and develop and the litigation in and of itself, because as much as parties want to say that 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, regardless of whether the parents think that they’re sheltering the child or not. So typically when a court weighs the preference of the child, the court does look at, in my opinion, the litigation, because that’s going to heavily tilt that scale against considering only the child’s preference.
Abigale M. Stolfe:
Now if the child’s 16, then the weight may carry a little bit higher, even if there’s a very litigious history. But if you’re talking about an eight, nine or a 10 year old, that is definitely going to be very critically analyzed.
Diana Shepherd:
Do parents have to resolve all of their custody issues before finalizing their divorce in New Jersey?
Abigale M. Stolfe:
Typically when you get divorced, if you do not have all of your custodial issues resolved, then you are scheduling yourself for, what’s called a plenary hearing, which is a limited hearing on this particular issue. That is very uncommon and atypical.
Diana Shepherd:
Can a custody agreement be changed? How and what would be a reason for changing it?
Abigale M. Stolfe:
A custody arrangement can be modified post-divorce, for instance, based upon a change of circumstances. That change can be a variety of instances. For instance, one party is moving, one party’s job has changed, the child now has different needs. If you entered into an arrangement when the child was two and the child is now eight, that passage of time could serve as the change in circumstance.
Abigale M. Stolfe:
So custody is never closed. It’s never a closed door. It’s always open to modification. But with that said, you can’t go every year, every six months, every nine months and make little changes. There has to be a change of circumstance.
Diana Shepherd:
So are you saying that primary parenting rights can be taken away from the parent to whom they were originally assigned and awarded to the other parent?
Abigale M. Stolfe:
The designation of the primary custodial parent can be modified if there’s a substantial change in circumstance to warrant that modification. what we typically see, however, is that parties go in to do what we call minor modifications resulting typically from the passage of time. So when the child was two, they weren’t in extracurricular activities and now they’re eight and they’re in three activities. That creates a change of circumstance that warrants a change in the parenting schedule.
Abigale M. Stolfe:
When you’re talking about shifting the primary residential parent, that is typically a much more in depth and substantial process, because presumably it’s objected to, and in that case, that’s going to be a trial, that’s going to be experts, that’s going to be a much more involved process than a minor modification, which is what I spoke about a moment ago.
Diana Shepherd:
How does the judge determine whether one party requires supervised visitation with the children?
Abigale M. Stolfe:
Supervised visitation is typically utilized in cases where one party presents a risk to the child. In cases most typically of addiction, abuse, whether it be alcohol, drugs, sex, that’s typically when you would see a supervised situation. And again, this always goes back to the statutory factors that I read to you before.
Diana Shepherd:
Does one parent need the other parent’s permission if they wish to move to another state and take the children with them?
Abigale M. Stolfe:
Under the statute, neither party can relocate the child out of the jurisdiction without either consent or a court order. That would be a substantial change in circumstance, which would warrant A, modification and parenting time and B, potentially the modification of the custodial designation.
Abigale M. Stolfe:
Typically what happens is if one party is seeking to relocate, and assuming there’s some agreement, they would have to petition the court and establish the substantial change in circumstance to justify that relocation. Usually we see those circumstances in the case of a remarriage, so you’re moving to the home state of your new spouse, or a job transfer, in which case you’re relocating out of the state in order to facilitate the continuation of your employment responsibilities.
Abigale M. Stolfe:
There are other instances when people seek to relocate family. They want to be closer to their extended family. Maybe the non-custodial parent 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 under the statute, you would have to have an agreement or a court order.
Diana Shepherd:
Under what conditions will a judge grant a request for a visitation with, or even custody of a grandchild?
Abigale M. Stolfe:
Grandparent visitation is granted very sparingly. Typically what happens in a grandparent visitation case is the grandparents have to show that the child would be harmed by not continuing the relationship they once had with the grandparents. Not that the grandparents would be harmed. There’s some confusion on who’s harm we’re looking towards. We’re looking towards harm to the child. So typically grandparent visitation is granted in the cases of older grandchildren, not infant or young grandchildren. Again, the premise being that it’s harm to the child.
Diana Shepherd:
Is custody and child support determined the same way for unwed parents as it would be for their legally married counterparts?
Abigale M. Stolfe:
Whether you’re married or not married, the child is entitled to parenting time under the statute, the same statute 9:2-4, that statute provides that the child is entitled to parenting time and a relationship with both parents, and that it is the policy of our state, that the parents should have an equal opportunity to raise their child. That does not necessarily translate into 50/50 timeshare, but it translates into both parties having an active role in the rearing and raising of a child.
Abigale M. Stolfe:
So given that our state is driven by the needs of the child, whether you are married or unmarried, the child’s needs are the same. So the statute is the same in both cases as is the child support guideline. We have a New Jersey Child Support Worksheet where we set out the factors, meaning the parties’ incomes, any mandatory deductions, health insurance expenses, work related daycare expenses. That calculator provides a child support analysis for us. Again, that calculator is used in both married and getting divorced and unwed and seeking to determine parenting time and financial responsibility.
Diana Shepherd:
My guest today has been Abigale M. Stolfe, a family law attorney at Stolfe Zeigler, a boutique family law firm in Toms River, New Jersey.
Diana Shepherd:
Abigale vigorously pursues creative, fair and flexible solutions to divorce related children’s issues while protecting your and your children’s best interests. For information about how Abigale can assist with your child custody issues, go to www.szfamilylawfirm.com.
