New Jersey Child Custody Questions

New Jersey child custody attorneys provide answers to frequently asked questions with regards to New Jersey child custody and New Jersey custody laws.

Who will get custody of our child(ren)?

The analysis is centered on the best interests of the children. New Jersey law requires that both parents are equal regarding their custody rights.

What is joint custody? What is sole custody?

Joint custody may refer to the legal custody of a child (the decision making regarding the child’s everyday life) or to the physical custody of a child. Often it means that the child will reside with one parent primarily but spend time with the other parent frequently or alternatively reside with the other parent.

Sole custody refers to one parent having either sole legal or sole physical custody or both. Here, the sole custodian has the decision-making power and also has physical custody of the child. The non-custodial parent would have appropriate parenting time depending on the case.

If both parents share custody does anyone pay child support?

Yes, it is still possible the dependent parent will receive child support. Shared custody implies there will be a downward adjustment to a support obligation.

Can a parent refuse to allow visitation with the other parent if child support is not paid?

No. A petition for contempt of court should be filed.

When can my child decide which parent to live with?

This depends on the fact finder. Some judges will consider the desires of the children depending on their age and credibility. Though it is a consideration, it is not always determinative.

Do grandparents have custody and visitation rights?

Only in limited circumstances. The grandparent has the burden of proof that visitation is in the best interests of the child, and they bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The court must also consider factors such as the relationship between the child and grandparent and the biological parents’ desires.

The bottom line on this issue is if the grandparent can meet the burden that their visitation is necessary to avoid harm to the child, then the parent who has custody of the child probably should not have the child, since the child will be in harm’s way without the grandparents.

What is a parenting plan, and do I need one?

When parents cannot agree to a custody arrangement each party must submit a parenting plan to the court. The plan sets forth a proposal for the types of custody to be awarded, a schedule for parenting time and holidays, etc. The plan also includes important information about the parents and their employment.

When will child custody be decided?

Custody may be decided after the filing of a complaint and any responses and subsequent mandatory mediation (with the exception of cases in which a final restraining order has been entered as a result of domestic violence).

If mediation is unsuccessful a trial will be scheduled and the court may order an investigation to be made by the Family Division of the character and fitness of the parties and the overall environment they would provide for the child(ren).

When can I modify custody?

You can always modify a custody order if it is in the best interests of the children and if there has been a change in circumstances.

What if we cannot agree on a custody arrangement?

A trial will be scheduled and possible investigation into the fitness of the parents will take place.

How is custody decided?

The custody determination is based entirely on the best interests of the children. Some examples of the factors the court considers are:

• The parties ability to communicate and cooperate in matters pertaining to the child;
• The interaction of the child with its parents and siblings;
• The quality and continuity of the child’s education; and
• Any history of domestic violence.

How can I increase my chances at getting a larger custody agreement?

You have to show the court that you promote the child’s best interests and that the environment in which the child would live with you also promotes the child’s best interests. Remain active in your child’s day-to-day life and be involved in every way possible.

What is visitation?

Visitation is referred to as parenting time in New Jersey. It refers to the time a child will spend with the parent who is not the primary custodian. It may include visits during the day or evening or overnights, such as weekends.

Can a judge order supervised visitation or no visitation?

Yes. This is largely dependent on the facts of a particular case, but supervised visitation is possible as is no visitation in more extreme cases.

Do courts favor the mother over the father?

New Jersey law provides that both parents must be considered on equal footing when it comes to a custody determination. That said, New Jersey still gives weight to the “tender years doctrine” and tends to consider that factor in favor of mothers. If the child is considered to be of tender years, this may weigh in the mother’s favor if both parties are equally fit though it is not determinative.

What should I know before a custody trial?

You should know about your child/children. You should know their school and teachers, their sports and coaches, their doctors and appointments. You should be an active participant in their daily lives.

You should also know what to expect from trial and prepare in advance with your attorney. You should know what you will testify to and present to the judge to prove you promote the child’s best interests.

Can I collect my own evidence to use if my custody case goes to court?

Certainly and often this is helpful. However, you must go over the evidence piece by piece with your attorney as not all evidence is admissible and some may not be advisable to share in court.

Do I need to use a Guardian ad Litem/custody evaluator?

A Guardian ad Litem is ordered in cases where the court needs someone to represent the child’s best interests separate and apart from the parties’ attorneys. He or she may do investigations into the fitness of the parents to determine who fits the needs of the child most. You do not always need one, and many cases do not involve one.

A custody evaluator on the other hand may be more common in cases that cannot be resolved in mediation. As stated above, an investigation may be ordered by the court in cases where the parties cannot agree on custody.

Will my child need to appear in court?

For some custody proceedings, the children will be required to attend. It is up to the court whether to speak with the children. Some judges will hold interviews with children in their chambers.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act is a federal law designed to protect custodians and their children from unilateral removal of the child or children to another state. By creating uniformity nationwide, the law allows the states to assist each other in these types of custody situations.

What if my wife tries to move the kids out state?

She should first have followed the law that requires her to file a motion to request court approval. At that time, she has to prove that she has a good faith reason for the move and that the child will not suffer from the move. The court considers several factors in making this determination including the proposed alternative parenting time schedule for the non-relocating parent.

If I have custody, will I receive child support?

In some cases yes, but it depends entirely on the particular facts of the case in terms of the parties’ custody schedule (who has primary or more time with the children) and also the parties’ respective incomes. The primary custodian who is also the lower wage-earning spouse will receive child support.