FAQs: Child Custody Laws

Family law issues in New Jersey can be varied and multi-faceted. Lawsuits can range from a simple divorce to complex custody matters, to international jurisdictional questions and property characterization. Some of the most common questions I hear from clients about family law in general follow.

There are two main kinds of custody in New Jersey – physical and legal. Physical means that a parent has the right to maintain a legal residence for their child, while legal custody is the ability a parent has to make major decisions for the child. So, for example, whether a child should receive certain medical treatment, or enroll in private school, would all be part of a person’s legal custody.

In New Jersey family law cases, courts will always look to the best interests of the children when determining the types of custody a parent should have. There is always a preference for joint legal custody, which means both parents get to be involved in the decision-making for the children. Custody is not a one-size-fits-all determination, and courts will look at a variety of factors when making its decision.

There are 14 distinct factors a court will look at, in addition to the best interest of the child. These factors include things like the ability of each parent to co-parent and communicate about the child and to accept the orders of the court. Past dealings between the parents, children and their siblings will be instructive, as will any history or indications of domestic violence or abuse. If the child is old enough to make a good decision, their preference will be considered, as will the needs they have and the stability of each party's house.

No – these are two different concepts. Parenting time is also known as ‘visitation,' and determines the amount of time a noncustodial parent gets to spend with their child. Usually, a court or the parties will agree to a specific schedule whereby the noncustodial parent gets to have guaranteed time with the child – often every other weekend from Friday to Sunday and another overnight during the week. Parents can agree to swap weekends or have a different schedule to the one the court has designed, especially if the parents work together well, or the child is old enough to understand and handle the flexibility.

While courts in New Jersey always strive to ensure both parents get equal time with the child, sometimes it is not possible, especially if there has been a history of child abuse, physical disability, mental health problems, or any other situation where the health and safety of the child cannot be guaranteed. In these cases, the courts will order supervised visitation. The parents can agree on a third-party to supervise, like a family friend. Or, in some cases, an adult who has special training to supervise visits will be appointed by the court. The place of visitation is broad – it can be done at a community agency, or even a home or other public place, depending on the facts and circumstances of the case.

This is a special program which promotes court-ordered supervised visitation and has created specific organizations which make it easier to provide supervised visits. There are positive aspects of the program: visits take place in a neutral setting with third-party supervisors. This means that there won't be unnecessary meddling by a family friend or relative who might have a certain bias against the noncustodial parent. The program is somewhat flexible, meaning noncustodial parents can have visits during the weekends and evenings, and sometimes the programs include a therapeutic element to encourage continued bonding between parent and child.

Unfortunately, in really acrimonious cases, one parent can be tempted to use the children as pawns to hurt the other party. In New Jersey, one law makes it a crime for the child to be ‘taken, detained, enticed or concealed' from the other party for at least 24 hours. If they do this and are found guilty of Interference with Custody, they face incarceration, attorney's fees, and potentially other expenses and costs. This comes up when one parent decides to hide the child during the other party's court-ordered parenting time, or if they were served papers or know a case is about to start and they take off with the child.

There are some cases where it can be a defense if the parent who concealed the child can demonstrate that they believed it was necessary to do it for the child’s well-being, and within 24 hours of them taking the child, they also called the police, prosecution or Division of Youth and Family Services. It is always a good idea to seek out the advice of a lawyer with experience in New Jersey family law before you prevent the other parent from seeing their child.

Yes – courts will approve of nearly any agreement if they believe it is in the best interest of the child. One of the more unusual plans is called ‘bird’s nest’ custody. In this arrangement, the children remain in the marital residence (or one residence) and the parents move in and out in accordance with the parenting time agreed upon. Usually, the custodial parent will live in the house the majority of the time but will vacate the property when it's time for the noncustodial parent. This arrangement helps the child get the stability that is often sorely needed when a divorce happens – but it's not for everyone.

In New Jersey family law cases, there has been a modern trend to allow parallel parenting over co-parenting, particularly when the parents have a contentious history. Co-parenting is more of a partnership and relies on parents who are able to communicate without conflict. Not everyone can achieve this balance – especially right after the split. Parallel parenting might be a better option. This kind of approach limits the amount of contact ex-partners have with each other, reducing conflict and ensuring the children do not become mixed up in an argument. Parallel parenting utilizes technology and electronic communication, meaning the parties are disengaged and less emotional when making arrangements or coming to agreements for their children.

It will take work, that is for sure. But if you do some of the following tips and are dedicated to practicing co-parenting, you and your ex-partner will greatly reduce the conflict your children experience. Put your past experiences with your ex aside – you are now concerned about the present and future of your children. Don't let an affair or a nasty comment said in the marriage derail this goal. Use technology to communicate, especially if you are annoyed with each other. This allows you to respond in a measured way, and not say anything you regret. Remember – don't write anything you do not want to be read aloud in front of a jury. And understand that there will necessarily be ‘blind spots' when it comes to your children spending time at the other parent's house – you cannot control every little thing in their lives when they are apart from you. Once you come to grips with this, you will learn to recognize the big battles.

The parent of primary residence (PPR) has the primary responsibility in exposing children to religion and their religious upbringing, if any. Of course, the other party is allowed to expose the children to a different religion – but they cannot educate them in this religion. In cases where the parents share equal parenting time of the children, then the primary residence is the one where the child lives during the majority of the school year. Courts will allow parents to agree to a different arrangement, but the default rule is for the PPR to choose. Therefore, if you and your ex-partner decide to agree on various religious courses or exposure, the agreement must be explicitly written, with details about all manner of religious upbringing. This can be particularly important if the two parents share a different religion, and want their child to have exposure to both.

Unlike moving out of state, there is no statute under New Jersey family laws concerning relocation within the state. However, there is great case law on the matter, which states that if such a move is found to be a substantial change in circumstances, then a modification of custody and parenting-time might be warranted (Schulze v Morris).

If you have questions about unique custody arrangements or relocating with your child during a New Jersey family law matter, contact the law offices of Peter Van Aulen for an initial consultation today at 201-845-7400.