There are two components of custody: legal custody and residential (or “physical”) custody. Most parents are awarded joint custody, wherein legal custody is shared at all times by both parents. Joint custody arrangements can be either (a) joint legal custody and joint residential custody, whereby the child spends an equal amount of time with each parent; or (b) joint legal custody with one parent having primary residential custody, whereby the child lives primarily with one parent and spends time with the other parent periodically. These two types of custody arrangements are most common because they preserve the decision-making role of both parents and approximate, to the extent practicable, the shared companionship of the child and both parents.
Best interests of the child
The overarching consideration when determining a custody arrangement between parents who live separate from one another is the best interests of the child, taking into account the child’s health, education, safety, maintenance and overall welfare. There are several factors a court must consider in deciding what custody arrangement would serve the child’s best interests.
There is perhaps nothing more important in any family action than custody issues. They tend to be the most emotionally-charged aspect of any family case, particularly if left to the court to decide rather than agreed-upon between the parties. Nobody knows a child better than his or her parents, so it can be difficult accepting a court’s decision as to what is in the best interests of the child. In fact, courts prefer not to have to make custody determinations, provided the parents are able to agree upon an arrangement consistent with the child’s best interests.
Physical custody refers to the timesharing arrangement between parents. Either the child resides solely with one parent or, in the more likely case, the child alternates time with each parent. The parent who the child lives with, or the parent with whom the child spends the majority of his/her time, is referred to as the “parent of primary residence” or the “primary custodial parent.” Decisions that are routine or minor are the responsibility of the primary custodial parent. The parent who the child spends less time with is referred to as the “parent of alternate residence.” This time spent with the parent of alternate residence is referred to as “parenting time” or “visitation.” The parent of alternate residence is generally entitled to parenting time, but that right is subordinate to the child’s best interests. Thus, for example, if the parent of alternate residence does not have proper living conditions, the court may consider denying that parent any overnight visitation, as it would not be in the child’s best interests to sleep in as uninhabitable or unsafe environment.
Legal custody refers to a parent’s right to participate in making major decisions for the child. Such decisions might include, among other things, the child’s medical treatment, education, living circumstances, and general welfare. Generally, the parents will be awarded joint legal custody, which means they both have the right to participate in making major decisions for the child. Sole legal custody is unusual, but it may be awarded in extreme circumstances, for example, if one parent has a proven history of engaging in behavior that poses a risk of serious injury to the child.
Process for Determining Custody
In all family actions where custody is disputed, the parties are required to first attend mandatory Custody and Parenting Time Mediation, unless there is a domestic violence restraining order or the case involves child abuse or sexual abuse. If the mediation results in an agreed-upon custody and parenting time plan between the parties, it is submitted to the court in the form of a Consent Order. If an agreement is not reached during mediation, the matter is referred back to the court for further proceedings.
The court may require that an investigation be conducted by the county probation office, and the probation office will file its report with the court within 45 days. Furthermore, the parties will be required to each submit a proposed Custody/Parenting Time Plan to the court within 75 days of the last responsive pleading (typically an “Answer” and/or “Counterclaim”).
The court will set a trial date for the custody dispute around three months after the last responsive pleading. The court may, on its own motion or at the request of either party, conduct a private interview with the child, provided the child is old enough, which typically (but not always) means at least 7 years old. The interview is private because it takes place not in open court, but in the judge’s chambers. The parties may submit proposed interview questions ahead of time, and they may request copies of the transcript after the interview has concluded, but they cannot attend or partake in the interview itself.
Factors for determining custody
New Jersey’s custody statute lists the following factors that a court must consider in making a custody determination: the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children.
Courts are not limited to the above factors.
The court may also consider, for example, which parent had been the primary caretaker of the child in the past; if the child for some reason has a greater need for either maternal or paternal care; whether the child has a religious preference that differs or aligns with either parent’s belief system; the parents’ respective desires for the child’s religious upbringing; the parents’ habits; whether the preference of the child has been inappropriately influenced by either parent; the economic positions and work schedules of the respective parents; and/or whether the passage of time has changed the child’s relationship with either parent.
The parents’ ability to agree, communicate and cooperate in matters relating to the child
The parents’ ability to communicate and resolve upon significant issues, and to cooperate in matter of childrearing, is an important consideration. The principal criteria a court considers before establishing a joint legal custody arrangement is usually the parents’ ability to put aside their personal differences and cooperate on matters relating to the child’s health, safety and welfare.
It is unfortunately more common than one would hope for parents to fight their personal emotional battles with one another using their children as weapons, with little concern about how that behavior damages their children. There is no divorce between parent and child. As such, a successful joint legal custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever ill will the parents may harbor towards one another.
The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse – If a parent is not willing to accept residential custody, the court is unlikely to grant it to him or her, unless giving primary residential custody to that parent is in the child’s best interests. The parent of alternate residence has a right to visitation with the child, and the primary custodial parent has a duty to ensure that the parent of alternate residence has the visitation with the child to which he or she is entitled, and that the child maintains a good relationship with the parent of alternate residence. This is particularly important because a court might consider removing the child from the primary custody of a parent who takes affirmative steps to deprive the child of visitation or a relationship with the parent of alternate residence. If one parent is more accommodating of the other parent’s requests for visitation, then the court might place primary custody with that more accommodating parent, as that arrangement will likely maximize the role that both parents will play in the child’s life.
The interaction and relationship of the child with its parents and siblings
The presence of siblings should be considered in awarding custody. A court is unlikely to find that, in families with more than one child, it is in the children’s best interests to live apart from one another. On the other hand, a young child may perceive the birth of a sibling as an act of parental hostility, in which case a court may consider a split parenting arrangement (where one child lives primarily with one parent, and the other child lives with the other parent). In addition, the court will consider whether and to what extent the child(ren) has established a relationship with both parents. To do this, the court might assess which parent has historically helped the child get dressed every morning, took care of the child when he was sick, helped the child with his homework, and/or participated in the child’s school and/or extra-curricular life outside the home. The court will also consider whether the child expresses love for both parents, an ability to trust both parents, or, on the other hand, if the child displays a particular disdain for one or both of the parents. Generally, a child’s best interests are fostered when both parents are involved with the child, assuring frequent and continued contact with both parties.
The history of domestic violence, if any
A parent’s tendency to commit domestic violence is relevant to his or her fitness as a parent. However, the best interests of the child are not necessarily served by an award of custody to the non-abusive parent. Generally, it is presupposed that frequent and continuing contact with each parent is in the child’s best interests. In addition, some acts of domestic violence are more serious than others, so the court will take into account the extent and consistency of the abusive parent’s domestic violence. As such, the court might be more willing to fashion an award of shared residential custody to the child’s parents notwithstanding one parent’s history of domestic violence, if the predicate act of violence was a one-time verbal threat versus if the predicate act of violence was a stabbing. The court will also assess what impact the domestic violence had on the child. The child may be scared of a parent that he or she knows has a history of being violent towards his or her other parent. On the other hand, the child may have been too young to recall its occurrence at all.
The safety of the child and the safety of either parent from physical abuse by the other parent
The safety of the child and the safety of either parent from physical abuse by the other parent is a critical factor evaluated in any custody determination. A court can usually infer a child’s future safety with a parent who has an absence of any past physical abuse. However, a court will justifiably be hesitant to give unsupervised parenting time to a parent who has a history of physical abuse based on an inference that that parent poses a threat of physical harm to the child. Thus, a parent convicted of sexual assault should not be awarded custody, and often may not have any visitation rights to a minor child, absent compelling evidence that it is in the child’s best interests to spend time with that parent. To assess the parents’ abusive tendencies, a court may evaluate whether the parents have criminal histories, ask the parents whether they have any family history of mental health issues such as anger management, or appoint an expert to conduct a psychological evaluation of the parents. Proof that a parent has a tendency towards physical abuse will likely affect a court’s decision not only as to whether that parent should have parenting time, but also as to whether such parenting time should be supervised by a professional, like a therapist.
The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision
In appropriate circumstances, a child’s preference as to with whom he or she desires to primarily reside may carry critical weight with the court. The appropriateness of a child’s expressed preference depends on whether his or her age, maturity, and level of understanding would allow him or her to form an intelligent preference regarding custody. The younger the child, the less likely the court is to find that the child can form a rational judgment as to custody. The older the child and the more mentally developed the child is, the more emphasis the court will place on the child’s perceptions, attachments and expressed feelings. A child preference should be approached with caution, however, because a child (especially younger children) are susceptible to their parents’ influence. Even if a parent does not consciously try to persuade the child to have a certain preference, a parent’s negative attitude towards a particular custodial arrangement may “spill over” to the child, which may be reflected in any preference he or she expresses to the court.
The needs of the child
Because every child has a unique set of needs, the court’s assessment of a child’s needs in a custody determination is very fact-specific. Infants need more attention than teenagers. Children with chronic diseases need more individualized medical attention than children with seasonal allergies. Children in wheelchairs need wheelchair-friendly houses. Children with busy schedules who are not yet old enough to drive typically need a parent whose work schedule is flexible to provide them the needed transportation. Teenagers are more likely to need a separate room than are infants. The child’s religious upbringing is also a relevant consideration. If the child is to be raised under a certain faith, and one parent lives near temples but the closest temple to the other parent’s house is seventy miles away, then the child’s needs might be better served living primarily with the first parent. The court will also consider whether either parent has circumstances that might hinder his or her ability to meet the child’s needs. For example, if one parent suffers from sleep apnea and requires the use of a CPAP machine while sleeping, the court may be less inclined to give that parent any overnight visitation with his or her infant child, who may wake up screaming for a bottle in the middle of the night unbeknownst to the parent, whose sense of hearing will likely be drowned out in the other room.
The stability of the home environment offered
All children have an inherent need for a stable, secure home environment and for continuity of relationships and personal attachments. Generally speaking, a court will strive not to make any changes to the child’s external world, so as to avoid any disruption to the child’s development. Thus, the court will assess where the child’s school, friends, doctors, and activities are located in deciding what custodial arrangement fosters the child’s best interests. Also relevant is how much the parents’ have been respectively involved in the child’s life. One parent may have a history of going to parent-teacher conferences, attending the child’s sports events, etc., whereas the other parent’s involvement has been minimal. Placing primary custody with the uninvolved parent may lead to a disruption in the child’s once had stability. In addition, prolonged absences of a parent may be a relevant consideration in terms of its effect on a child’s developmental progress, or on his or her ability to have a relationship with that parent. This might be a concern to the court in a custody dispute, for example, involving one parent who is periodically deployed overseas for military service.
The quality and continuity of the child’s education
Moving a child from a familiar to an unfamiliar school is often associated with discomfort and distress, which might stunt a child’s academic development. Thus, courts tasked with making a custody determination will often assess where the child’s school is located, and in which parent’s primary care the child can practically continue attending that school. The court may also compare the quality of education offered by the school districts in the parents’ respective towns. If the child has a learning disorder or is in need of private tutoring, the court may assess the availability of such programs when in the care of each parent.
The fitness of the parents
At a minimum, a parent must be physically and psychologically capable of fulfilling the role of parent before he or she can be named the primary custodial parent. A parent’s specific medical condition might render him or her unable to serve as the primary custodial parent. The court will also evaluate whether there is a presence of any drug, alcohol, or morality issues with either parent. Parents who have a history of drug use, abuse, domestic violence, criminal activity, or otherwise are typically viewed in a poor light and primary custody will be awarded to the parent without the substance/violence/criminal problem.
The geographical proximity of the parents’ homes
The geographical proximity of the parents’ two homes is an important factor to the extent that it affects the child’s school and activity arrangements, the child’s access to relatives and friends (and to visitation with the parent of alternate residence), and the ease of travel and conducting parenting time exchanges between the two homes. A court will find it more feasible to award shared residential custody, whereby the child split his or her time 50/50 between the parents, if their houses are closer together.
The extent and quality of the time spent with the child prior to or subsequent to the separation – The court might assess which parent has historically helped the child get dressed every morning, took care of the child when he was sick, helped the child with his homework, and/or participated in the child’s school and/or extra-curricular life outside the home. For children, changes in routine, or being displaced from a parent who typically led the child through his or her routine, may damage the child’s mental and even physical health, if for example, the child begins experiencing sleeping difficulties.
The parents’ employment responsibilities
The parents’ respective employment responsibilities are significant because of their effect on each parent’s ability to properly care for the child, spend time with the child, and maintain a relationship with the child. The flexibility of the parents’ respective work schedules becomes important if the parents plan to share responsibility for picking the children up from school.
The age and number of the children
Younger children change much more rapidly, from one stage of growth to the next, and generally require more attention from their parents. The age of the child is a factor that overlaps with many other factors. For instance, the older the child, the less susceptible he or she is to be swayed by his or her parents as to what the right custodial arrangement is, and the more likely the court is to give credence to his or her preference as to custody. In addition, the older the child, the less likely it is that he or she will need as much individualized attention as a younger a child. As for the number of children, the court will evaluate whether the parents have proper living conditions to accommodate the number of children that there are.
Appointment of a Guardian
The vast majority of custody disputes are litigated in the context of an action between the parents (divorce, etc.), in which the child is not even a named party. Thus, to prevent companionship with the child from becoming a bargaining chip during negotiations between the parents, the court may appoint a law guardian for the child, whose role it is to be a separate lawyer for the child – an advocate for the child as would any other attorney for any other client. On the other hand, the court may be appoint a guardian ad litem (not to be confused with a law guardian). A guardian ad litem’s role is to assist the court in making a best interest determination. The guardian ad litem, unlike a law guardian, is not tasked with advocating a particular position; rather, the guardian ad litem acts as an independent fact gatherer and evaluator of the child’s circumstances, and makes a custody recommendation to the court as to what furthers the child’s best interests.
Decisions regarding child custody involve issues of child development, parenting style, psychopathology, and mental and emotional health. A judge must evaluate the child’s relationship with his/her parents and other family members, how attached the child is to his or her current lifestyle, the psychological effects particular custody arrangements might have on the child, and more. Because both parents in most cases are technically fit to fulfill the role of the primary custodial parent, the court often appoints experts, particularly those in the mental health field, to assist it in determining which parent is better able to meet the child’s needs. Mental health professionals may be appointed to conduct a “custody evaluation,” the purpose of which is to gather facts about the child, and provide an expert report about what kind of parenting arrangement would be best for the child. These experts might interview the child, interview the parents, interview teachers and/or guidance counselors, and might even conduct a home study.
Relocation of a Child
Relocation (or “removal”) of a child who is native to New Jersey or has lived in New Jersey for at least five years is not permitted without court authorization, unless both parents consent, or the child him or herself consents and is of suitable age. If a parent seeks to relocate with a child outside of New Jersey, he or she must seek the other parent’s consent or file a motion with the court requesting permission. The less the proposed move interferes with the child’s best interests or the visitation rights of either parent, the more likely the court is to grant the request.
If the parents currently share residential custody, whereby the child splits his time 50/50 at each parent’s house, then the relocation motion is actually a motion to modify custody (since relocating out of state would mean the child would have to live primarily with one parent instead of splitting his time 50/50 between both). The parent seeking to relocate will have to demonstrate that a new custodial arrangement is in the child’s best interests.
If, on the other hand, the parent seeking to relocate out of state has primary residential custody of the child, then he or she must demonstrate to the court that 1) there is a good faith reason for the proposed relocation and 2) that the relocation is not adverse to the child’s best interests. Because it is generally presupposed that frequent and continuing contact with each parent is in the child’s best interests, a primary custodial parent seeking the court’s permission to relocate with the child out of state will have to propose a replacement parenting time schedule that will afford a similar amount of parenting time. Good faith reasons for relocation might include opportunity for higher education, long-term job prospects, proximity to extended family, and/or reduced living costs.