Sole Custody

In most cases in New Jersey, parents will enjoy joint custody with their children, meaning they will get to make most of the major decisions for the children together. In some rare cases, however, a judge will feel that it is necessary for one parent to be awarded sole custody of the children. This means that the parent has both legal and physical custody of the child, without input from the other parent.

When making determinations of custody, New Jersey judges must look at a number of factors. How well can the parents communicate and reach an agreement when it comes to making decisions for the child; what is the child’s relationship like between parents and any siblings or stepsiblings; are there issues of domestic violence, abuse or drug abuse; what is the child’s preference; as well as the needs of the child, the parent’s fitness, and stability of the home environment, among other things.

Unless there is a serious question about the safety of the child, nine times out of a ten, a judge will award joint custody. However, in one case, MI v JI, the court believed that the factors were such that sole custody was the right determination at the time. In that case, the couple had been married for 11 years and had two children. The case lasted two years and was heavily contested and acrimonious. The trial judge granted J.I sole custody, subject to advance written notice to the other party for any issues that could come up so that it could go back to court if necessary. Both parents would have equal parenting time with the children.

MI appealed the judgment, arguing that the court failed to apply a best interest of the child standard when awarding its judgment. In the trial judge's report, there was extensive detail outlining the conduct of each parent, and how their outbursts and attitude led the judge to conclude that if he awarded joint custody, the court would be required to intervene in each little decision for the children. JI was awarded custody because he demonstrated his ability to better follow the court orders, showed better judgment when it came to the children, and would involve the other party in major decisions – unlike MI. The appellate court found that, to the contrary of MI's argument, there was plenty in the record which supported the conclusion by the family judge. Ultimately, it did remand the case to allow the judge to explain how this award benefits the best interest of the child but did not fault the ultimate conclusion the judge came to.

This case is important because it demonstrates how a judge can decline to award joint custody, even if there are no issues of child abuse or drug abuse. Sometimes, deliberately not following court orders, making poor parental decisions that could harm the child, and failing to co-parent effectively with the other party may be enough for a judge to determine you do not deserve custody at all.

It is also unusual in that, despite sole custody being awarded, the parties still shared equal visitation of the children. In most cases, supervised visitation will be ordered simultaneously with sole custody. Supervised visitation is ordered when the non-custodial parent could pose a danger to the child – often accompanied by parents who are struggling with addiction or who have been found to have committed domestic abuse. Visits are typically supervised by a court-appointed volunteer, although judges can allow a family member or approved-of friend to be the supervisor as well. Supervised visits are usually ordered for a temporary period of time and will require the parent to complete certain goals or be evaluated in the future if they wish to see the child without supervision.

In most cases, if you ask the court for anything other than joint custody, it is better to do so at an initial custody determination, rather than in a later modification. The facts of Stewart v. Wiley emphasize the difficulty in modifying an order. The parties, never married, had a song together in 2008. The father was stationed in New Jersey, and the mother lived nearby. The father had served overseas, but when he was home he regularly saw his son and continued to pay child support. Before he left, he asked the mom to give his son a gift which had recorded his voice reading a book. The father claimed that the mother made fun of the present on her social media. The son had also recently been diagnosed with a speech delay, but the mother never sought therapy or told the father about the diagnosis.

In 2011, the parties entered into a consent order where they agreed to joint legal custody. In time, the father learned about his son's speech issue and that his mother was ignoring the issue. A new doctor which the father enlisted recommended therapy. The mother continued to fail to take him to therapy for months, so the father began to do it himself. As a result, he filed a motion to modify for sole legal custody because she was intentionally ignoring the child's special needs. The court declined to change custody but did award him sole legal authority to deal with the child's medical needs. The Appellate Court looked to the standard factors in making a child custody determination but considered additional factors due to the child's special needs. These included the role of getting an initial diagnosis and any delay a parent caused; acknowledgment of the diagnosis; ability to seek therapy and reinforce good behavior; willingness to become educated and serve as an advocate for the child; and the quality of therapy and special education the child will receive. The court affirmed the judgment of the trial court, demonstrating that once joint custody has been awarded, it is difficult to take it away.

If you have questions about sole custody in New Jersey, contact the Law Office of Peter Van Aulen for an initial evaluation today at 201-845-7400.

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