How is Custody Decided? - Maria A. Giammona Law, LLC

When couples end long term relationships or decide to divorce, one of the foremost concerns is custody of their minor children and parenting time. In New Jersey, children under the age of eighteen (18) are within the jurisdiction of the family court to make decisions concerning legal and physical custody. This blog will explore the different types of custody arrangements and how Courts ultimately decide custody.

Continue reading to learn about custody in New Jersey and call an experienced Totowa, Wayne, Paterson divorce lawyer at (973) 737-1637 with any questions or to help with your New Jersey family matter.

What Is the Difference Between Sole and Joint Legal Custody?

In New Jersey, parties can share joint legal custody, or one parent can have sole legal custody. Legal custody is not the same thing as physical custody i.e. parenting time. Legal custody refers to the right to make important life decisions regarding the children, such as health, education, religious upbringing, and general welfare. When parties share joint legal custody, they equally share in the decision-making process. When one party has sole legal custody, one parent will make the final decision concerning the child. In most circumstances, parties will share joint legal custody and have equal decision-making power.

Day-to-day decisions, such as whether the child will have a play date, what type of meal they will have for lunch, take their vitamins, or go see a movie with friends, are made by the parent who is parenting the child.

What Is the Difference Between Sole and Joint Physical Custody?

In accordance with New Jersey law (N.J.S.A. 9:2-4), physical custody refers to where the child will reside. Sole physical custody usually entails one parent being the primary physical custodian of the child, with parenting time for the noncustodial parent. Joint physical custody entails the parties splitting parenting time with the child. In New Jersey, the Courts are leaning towards 50/50 time sharing between the parties, because there is an understanding that a child benefits from having access to both their parents. New Jersey law gives courts the freedom to order any custody arrangement so long as the parenting time plan is in the best interests of the child. (N.J.S.A. 9:2-4(c).) If a proposed time-sharing arrangement is not the best interests of the child given the particulars of the case, for example the distance between the parties, the parties’ respective employment demands, the preferences of a child who is older than twelve (12) etc., the Court may not impose it.

The law also states that parents can submit their own parenting time plans to the court and a judge must honor it and enforce it in a Court order, unless it’s contrary to the child’s best interest. (N.J.S.A. 9:2-4(d)

In essence, parties have the freedom to construct a parenting time plan that works best for their children and their homes, and a Court will honor that schedule and order both parties to comply with it, so long as the schedule is in the child’s best interest.

What Is an Unfit Parent?

New Jersey defines an “unfit” parent as a parent whose conduct has a substantial adverse effect on the child. An unfit parent could place children at risk of emotional, psychological, or physical harm. A court may find a parent to be unfit for the following reasons:

Mental health issues or mental illness of a parent
A history of violent behavior or criminal activities
A history of domestic violence
Alcohol and substance abuse issues
Child abuse or neglect.

When a parent is deemed unfit, they can be granted reduced parenting time. One parent may allow their child to spend time with the unfit parent through supervised parenting time. Parenting can be supervised through the Courts, or the parties can pick a mutually agreeable supervisor who would accompany and observe the child during parenting time with the unfit parent.

Can My Child Choose to Live With Me?

The Court may consider the wishes of a child twelve (12) and older; however, the Court’s decision will always be based on the child’s best interest, regardless of their preference. Once a child reaches the age of majority (eighteen (18)), they have the ultimate decision-making authority over which parent they wish to reside.

What Happens if Parties Can’t Agree on Custody or Parenting Time?

If the parties can’t agree on custody or parenting time, the Court will order them to participate in mediation, unless there is an active Temporary or Final Restraining Order. Then the Court cannot refer the parties to mediation.

If after mediation, the parties still cannot reach an agreement on custody and parenting time, the Court may order the completion of a custody and parenting time evaluation. The evaluation is done by a trained mental-health professional who assesses the family and makes non-binding recommendations on custody and parenting time to the Court. There is a fee for the completion of the evaluation and report. The fee is paid by the parties.

What Does “The Best Interests of the Child” Mean in New Jersey?

Ultimately, if the parties fail to resolve custody and parenting time on their own, during mediation or after a custody and parenting time evaluation, the issue must be tried before the Court. The Court will decide custody and parenting time based on the best interest of the child standard. New Jersey law provides the factors to consider when deciding what constitutes the best interest of the child. These factors are:

the parents’ ability to agree, communicate, and cooperate in matters relating to the child
the parents’ willingness to accept custody, and any history of unwillingness to allow parenting time not based on substantiated abuse
the interaction and relationship of the child with its parents and siblings
the history of domestic violence
the safety of the child and the safety of either parent from physical abuse by the other parent
the child’s preference when the child is of sufficient age and capacity to reason and to form an intelligent decision
the child’s needs
the stability of the home environment
the quality and continuity of the child’s education
the fitness of the parents
the geographical proximity of the parents’ homes
the extent and quality of the time spent with the child before or after the separation
the parents’ employment responsibilities, and
the age and number of the children. (N.J.S.A. 9:2-4(c))

Passaic County Divorce Attorney

Maria A. Giammona Law has been providing caring and compassionate representation for family law matters in Totowa, Wayne, Paterson and throughout Passaic County for over twenty years. We’ll patiently look at every aspect of your situation and help you determine the best strategy for your family. We invite you to call us at 973-737-1637 to schedule a free consultation.