Who Gets Custody in a NJ Divorce?

When going through a divorce in New Jersey, most parents’ first objective is to ensure total security and protection when it comes to the health and welfare of their children. That’s why many of my clients’ first question when we meet is, “Who gets custody of the children in divorce?” Many people will say they want “full child custody,” or “sole custody,” but don’t really know what those things mean.

It’s important for parents going through a divorce to know exactly what types of custody exist so they can make informed decisions about their children’s’ best interests. It is also important that each parent understands their charge and responsibility when it comes to their decision-making authority.

Child Custody Options In New Jersey

New Jersey, like many other states, separate custody into legal custody and physical (also called residential) custody. For both types of custody, there can be sole or joint. This means that there is sole legal custody, joint legal custody, sole physical custody, and joint legal custody. Parties must address both types of custody arrangements. So, while many clients say, “I want full custody,” there is no such thing. Importantly, many parents agree upon a hybrid of these types of custody arrangements that serves their children’s best interests.

What Do The Different Types of New Jersey Child Custody Mean?

Joint custody can be joint legal AND joint physical custody (sometimes called shared custody), or it can be joint legal custody with one parent being the “parent of primary residence.” In most cases, parents want joint legal custody with one parent being the parent of primary residence. This means that the parents will have equal decision-making authority, but the child will primarily live with one parent. The non-custodial parent will receive visitation, which sets out certain dates and conditions when they will have time with their child.

Here are the child custody terms that are often used in New Jersey divorce cases:

Joint Legal Custody:   Joint custody can be joint legal AND joint physical custody (sometimes called shared custody), or it can be joint legal custody with one parent being the “parent of primary residence.”  In most cases, parents want joint legal custody with one parent being the parent of primary residence.

When parties share joint legal custody, that means they have joint decision making, authority, and responsibility for making major decisions regarding the child’s welfare.  Some examples of the types of decisions would be major medical, educational, and religious decisions.

Sole Legal Custody: Sole legal custody gives one parent major decision-making responsibilities without any input from the other parent.  New Jersey law disfavors sole custody except for certain cases.  Generally, sole legal  custody is reserved where one parent has a history of child abuse or neglect, drug addiction, etc.  It also applies where one parent is deemed unfit.

Joint Physical Custody: When it comes to child custody in New Jersey, what most parents fight over is the physical custody of their children. Physical custody refers to the parent with whom the child resides. New Jersey courts tend to favor joint physical custody when possible.

Usually for logistical reasons, one parent usually is the “parent of primary residence,” and the other is termed the “parent of alternate residence.’ When one parent is the parent of primary residence, it means he or she has physical custody of the children for more than 50% of the time. Most times, because of the parents’ work schedules, children’s schedules, and other logistics, one parents usually has the children more than 50% of the time.

Typically, parents share physical custody and agree on a parenting time schedule; for example, alternating weekends with one another. If parents are unable to agree on an acceptable parenting schedule, they can ask the court to make this determination.

How To Get Sole or Joint Custody of Children

My belief in most aspects of divorce, and especially for child custody, is that the family is best suited to make decisions for itself.  Most of the times, with some negotiation and discussion, parents come to realize what’s best for their children.  The child custody arrangement almost always includes joint legal custody and a fair parenting time schedule that affords both parents meaningful time with their children.  Thus, the best way to get the type of custody arrangement that is best for you children, is to come to a negotiated or mediated agreement with the other parent.

If you cannot come to an agreement on NJ child custody, then your case is tried before a NJ family law judge.  Trials can take years, and cost hundreds of thousands of dollars.  In the end, there is no guarantee what a judge will decide. In fact, very often, a judge will make a decision that is very close to what the parties would’ve agreed on anyway.  Many times parties will go through an entire trial, and then settle their NJ child custody dispute before a judge makes a decision. This is why I strongly advise clients to avoid trial, unless it is absolutely necessary.

What Goes into a Mediated Agreement?

One of the major benefits of a mediated child custody agreement is that the parents can create a customized plan that works best for their individual family. Some of the things they can put into a mediated agreement include:

• Each parent’s work schedules and a statement that the other parent can have the right to watch the children while the other parent is working, if they so desire
• Where the child will live
• What specific times and dates each parent will have with the child
• Where pick-ups and drop-offs of the child will occur
• How school schedules, summer break, vacations, and holidays will affect parenting time
• What types of decisions the parents will make about the children
• What the parents will do if they disagree about a major decision regarding the children
• That each parent will have the right to attend the child’s school events, sporting events, and medical appointments
• How the parents will handle various expenses related to the child
• How the parents will respond to the need for changes and alerting the other parent
• Whether there will be any restrictions regarding introducing the children to new romantic partners or partners sleeping over while the children visit
• Telephone, email, social media, and other access to the children
• Access to records related to the child
• What steps will be necessary if one parent moves or relocates the child

The parents can make provisions about nearly any matter, and having a thorough agreement in place can often help prevent disputes from arising in the first place. The court will evaluate the parents’ plan and make sure it is in the child’s best interests before making it part of a court order.

Factors Courts Consider When Making Child Custody Decisions

If the parents cannot agree on a plan for the children, the court can make the determination. It does so by considering what is in the child’s best interests and evaluating a number of factors to make this determination. It can also be helpful for parents to be familiar with these factors so they know what may impact the court’s decision.

These factors include:

• The ability of the parents to agree, communicate, and cooperate in things related to the child
• The parent’s willingness to accept custody and any history of past issues where they did not allow visitation
• Any history of substantiated abuse
• The child’s relationship with each parent and their sibling
• The child’s needs and safety
• The time and quality of time each parent spent with the child before separation
• The fitness of the parents
• The age and number of children
• How close each parent’s home is to the other’s
• The child’s current living situation and the stability of the home environment offered
• Each parent’s employment responsibilities
• The child’s educational quality and continuity
• The child’s preference, if they are of sufficient age and maturity to express it

Changing Custody

Child custody agreements in New Jersey are not permanent. Things may change that justify a change in child custody. The parents can negotiate these changes or request that the court change the custody schedule due to new factors that arise.

In order to change custody, the parent seeking the change will need to show that the change is in the child’s best interests.

Are You Going Through a New Jersey Child Custody Dispute?

When you work with the Law Office of Andrew R. Fischer, you have an experienced  NJ child custody attorney you can depend on.  I will review all of your child custody options so you feel more secure than ever when designing a parenting time and visitation plan.  We will take a comprehensive look at your family’s schedules, needs, activities, and more.  You will be left with no more guesswork when it comes to your children’s wellbeing.

I’m sure you’ll agree that you want a dependable, experienced lawyer who will achieve the best results for your family, without breaking the bank.  I offer FREE consultations so you have nothing to lose by setting up a meeting.

Take action now.  Contact Andrew R. Fischer : Monmouth county divorce lawyer to set up your no-obligation meeting so we can begin to discuss your NJ child custody case.