In a divorce with children, one of the most important and often most contentious issues is who will care for the children. Whether you are moving toward a divorce or separation or seeking to understand or modify the terms of your current separation, it's important to know how the law works.
Below, you'll find a breakdown of how child custody and parenting time work in New Jersey. Note that this is general information, not legal advice on your family's unique situation. Only a lawyer can explain how the law applies to your individual case.
What is child custody?
Child custody, broadly speaking, refers to the legal and practical relationship between the divorced or separated parents and their child or children. There are two concepts within child custody: legal custody and physical custody. Note that child custody is distinct from child support, which concerns how the children will be financially provided for; however, the child custody arrangement does affect how child support is calculated.
Legal custody
Legal custody refers to the power to make significant decisions about the child's life. These are not regular, day-to-day decisions such as what to have for dinner or whether to go to the park; those are usually up to whichever parent or adult caregiver the children are with at any given moment. Rather, legal custody refers to major decisions concerning a child's health, safety, education, and welfare.
Some examples of decisions included in legal custody are:
- Where the child will go to school.
- Which extracurricular activities the child will participate in at school.
- Whether and where the child will attend religious services or receive religious instruction.
- When the child needs medical treatment other than routine checkups and emergency services, such as specialist visits, elective surgery, vaccination, or counseling.
In New Jersey, most child custody matters involve some degree of joint legal custody, even if the child primarily lives with one parent. This means both parents share responsibility for these major life decisions. Some child custody arrangements contain more nuanced forms of joint legal custody where the parents share responsibility for some types of decisions but not others.
Sole legal custody, which means one parent has the right to make these major decisions without even consulting the other parent, is uncommon in New Jersey – and when it happens, it's almost always because one parent has committed abuse, neglect, or other acts that show them to be an unfit parent. Again, the courts' preference is for joint custody. Normally, a parent is only considered unfit if their conduct has a substantial negative effect on the child.
Physical custody
Also known as residential custody, physical custody refers to which parent the children live with on a day-to-day basis. A parent with physical custody can also make routine, daily decisions on the child's behalf while they are physically with them, such as taking them to the doctor or an urgent care center if they're not feeling well.
In shared physical custody, the children regularly alternate between their parents' homes. Usually, this is not an exact 50/50 split, especially given the realities of school, work, and extracurricular activities.
When one parent has the child for more than half the overnights in a year, then that parent is known as the "parent of primary residence." The other parent, then, becomes the "parent of alternate residence." This affects child support and, during the school year, where the children are allowed to attend school. (If there is an exact 50/50 split during the school year, then New Jersey has complex rules to decide where the children can go to school.)
Parenting time
Noncustodial parents have what's legally known as "parenting time;" that is, the right to spend time with their children. This is often colloquially called "visitation," but the courts refer to it as "parenting time" to emphasize that a noncustodial parent's relationship with the child goes beyond merely "visiting."
How child custody is determined in New Jersey
Generally, child custody can be determined in two ways: by a negotiated agreement between the parents or by a judge's decision.
Negotiated agreements between the parents
Most commonly, in divorce and separation cases, the parents are able to work out a custody agreement between themselves. However, this agreement must still be signed, submitted to the court, and approved by a judge to become legally enforceable.
Usually, judges will approve a child custody agreement that is signed by both parents unless they believe that it does not serve the best interests of the children.
How the court intervenes if an agreement cannot be reached
Typically, if the parents cannot agree on custody, the court will refer them to mediation. This can be bypassed in cases involving domestic violence. Mediation usually involves the parents (and their attorneys) sitting in separate rooms while a neutral third party (a mediator) goes back and forth to help them work out an agreement.
If mediation does not work, the judge may order an investigation to look into the parents' character and fitness, the family's economic condition, the parents' homes, criminal records, and any other relevant information. A qualified evaluator may also interview the parents and possibly the child or children and submit a report to the judge. While the final decision remains with the judge, most judges give a great deal of weight to the evaluator's recommendations.
As this process unfolds, the parents may reach a negotiated custody agreement at any time. However, if they still cannot, then the matter proceeds to trial. Again, during a child custody trial, the judge's job is to reach a decision that serves the child's best interests based on both the parents' attributes and the child's needs. If the child is old enough and capable of making an intelligent decision, then the court may also consider the child's stated preference.
Child custody and relocation in New Jersey
In joint legal custody cases, if one parent wants to move outside the State of New Jersey with the children, then they need either the other parent's permission or a court order.
New Jersey's courts have ruled that in relocation cases, the "best interests of the child" standard applies. That is, it's not enough for the parent with primary physical custody to say, "I want to move, and it won't hurt the child." Instead, the parent who wishes to relocate must actually demonstrate that approving the move to another state is in the child's best interests, under the same criteria that apply to child custody matters in general.
Moving within the state is potentially less disruptive but can still be highly contentious. For example, if there is a parenting plan in place that the move would disrupt, then the parent who wants to move needs the court's permission to modify the parenting plan (which, remember, is a legally binding judgment approved by a judge). If the other parent consents, then this is usually simple. But if the other parent does not consent, the court must decide whether to approve the relocation, again using the best interests of the child standard.
The importance of hiring the right child custody attorney
While New Jersey law doesn't require an attorney to handle your child custody matter, having legal representation is always a good idea. Even if you and your co-parent are amicable and confident you can work out an agreement, having an attorney can help ensure that your agreement complies with the law and puts you in a better position to have it approved by a judge. An attorney can also help to anticipate potential issues that could come up with the custody agreement and write contingencies into the plan. For instance, you might want to include a rule that if there is a dispute over medical treatment, you will follow the child's pediatrician's recommendations.
Of course, if your child custody matter is disputed, then it's even more critical to have legal representation to ensure that both your interests and your child's interests are protected throughout the process. An attorney can also help you take legal action to modify an existing custody agreement, enforce the agreement if the other parent refuses to comply, or defend your rights if you are accused of violating your child custody agreement or another aspect of your divorce.
The decisions you make today will affect your family's future, and you don't have to face those decisions alone. If you're dealing with a child custody, parenting time, or relocation matter in New Jersey, talk to an experienced family law attorney today.
