Child Custody & Visitation

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.

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.

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.

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:

1. Have the children formed a relationship with both parents so that they would benefit from joint custody?
2. Are both parties psychologically and physically able to fulfill the role of parent?
3. Are both parties willing to accept some form of custody?
4. Are the parties able to maintain the outlook of cooperation in regard to raising their children?

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.

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.