By Peter Van Aulen, Esq.
The public policy of child custody laws in NJ is to assure minor children regular and ongoing contact with both parents after the parents have separated or divorced. Further, it is in the public interest to encourage parents to share the responsibilities of raising a child.
Determinations in New Jersey about child custody and visitation are governed by a controlling standard that centers on the best interests of the child. What this means is that courts do not favor one parent over another in custody or visitation proceedings. It also means that while parents’ desires in regard to custody and visitation are taken into consideration, these are secondary matters in light of the best interests of the child standard. In other words, custody and visitation orders serve the overall wellbeing and welfare of the child above other considerations. Some of the statutory factors set forth in New Jersey law used to ascertain what is in the best interests of a child are:
– Ability of parents to agree, communicate, and cooperate on matters relating to the child
– Interaction and historical relationship between child and parents
– Preference of child (depending on maturity level and age)
– Stability of individual home environments of parents
– Geographic location of parents’ homes and proximity between them
There is legal custody and physical custody. Legal custody deals with who makes the major decisions in a child’s life. Physical custody concerns which parent the child resides with. In regard to legal custody, there is joint legal custody and sole legal custody. The most common legal custody arrangement in New Jersey is joint legal custody. With joint legal custody both parents make decisions such as education, health and general welfare. The day-to-day decisions are made by the custodial parent. With sole legal custody, only one parent makes all of the decisions in regard to the child’s education, health and welfare. Sole custody is used in situations when one parent has a history of substance addiction, neglecting a child, abusing a child, or the parents are not able to co parent.
The types of major life decisions that can come into play when legal custody is at issue include such matters as:
– Healthcare or medical decisions
– Education
– Religion
In reference to physical custody under a traditional parenting plan, there is the parent of primary residence who is the parent the children are living with the majority of the time. Then there is the parent of alternate residence who has liberal visitation. Liberal visitation can be defined in many ways, but under the traditional parenting plan, it is usually every other weekend Friday to Sunday and one to two non-overnight visits during the week.
No, it is not easy to change physical custody in New Jersey. The fact is that two important standards that must be met to support a change of custody. The first is whether or not there has been a significant change of circumstances warranting a change of custody. The second is the application of the best interests of a child standard. All New Jersey family court decisions – including those altering a custodial arrangement – must be in the best interests of a child or children.
Fathers often want more time than what is offered under the traditional parenting plan. In recent years, shared physical custody is becoming more popular in divorce cases. Shared physical custody in New Jersey is defined by a child spending two or more overnights with each parent. In a shared physical custody arrangement, a parent’s child support obligation will be reduced by the number of overnights spent with the child.
Joint physical custody is when the child spends almost equal time with both parents. This could be done a number of ways, but a common way is to do one week with one parent and the next week with the other parent. This works best if the parents can work well together in regard to the children, and they live in close proximity to each other, so they can easily get the children to school and their activities.
The Courts, in determining whether joint legal or joint custody is suitable, consider the following factors:
If a parent has history of behavior that creates a substantial emotional or physical hazard to a child, a Court could order supervised visitation. Supervised visitation could occur through a Court program or the Court could appoint a friend or relative who was acceptable to the parties to supervise the visitation.
Considering the position of a child when it comes to custody in New Jersey is made on a case-by-case basis. If a child is of sufficient age and maturity level, his or her thoughts on custody will be considered by the court. With that said, a child’s desire are not dispositive. Rather, the overarching best interests of the child standard governs how custody will be awarded in a particular New Jersey family law proceeding.
The length of supervised visitation is controlled by the facts involved in a particular situation. It does not have a fixed or set duration. In many cases, supervised visitation is intended as a short-term solution. A court is apt to order the parent being supervised to complete certain requirements or conditions in order to more towards a resumption of “normal” or unsupervised visitation. Examples of these requirements or conditions include but are not limited to:
– Parenting classes
– Substance abuse counseling
– Therapy or counseling more generally
Please note that custody cases can be complex and difficult. It is important to have an attorney who has extensive experience in child custody litigation. Law Offices of Peter Van Aulen, who are custody lawyers in NJ, offer a free initial consultation. Please contact them today at 201-845-7400.