Child custody is sometimes the most heated and emotional aspect of family law. Parents who fail to see eye to eye can find themselves in stressful disputes. These disputes can continue into the future, long after a divorce is finalized or custody is originally settled.

Ultimately, the children suffer the most when parents fail to cooperate during this process. For this reason, NJ child custody seeks to protect children throughout this process.

Keep reading to learn more about NJ child custody. We will review how courts determine custody and what you can expect moving forward.

If you need help now, call (732) 659-4109 to speak with a NJ child custody attorney.

An overview of NJ child custody

The State of New Jersey recognizes that children have the most to lose when parents divorce. Children have no say but will face life-changing circumstances because of their parents. For this reason, NJ courts want parents to decide on a custody arrangement that is in the child’s best interests. 

To start, parents have the opportunity to determine custody themselves. In simple situations, the parents can form a custody arrangement on their own. More often, parents work with attorneys and mediators to negotiate a custody arrangement.

NJ courts only become involved when parents cannot come up with a solution. In these cases, the court will review the situation and determine what is in the child’s best interests.

What does “best interests” mean in NJ child custody courts? 

In general, the NJ child custody process seeks a resolution that is in the best interests of the child. While this may sound simple at face value, what does this term mean? 

Unfortunately, there is no simple answer to this question. Since each case is unique, the custody laws in NJ leave room for flexibility. With this wiggle room, the judge can analyze the situation and make a nuanced decision. 

According to N.J.S.A. 9:2-4(c).), NJ courts will determine the best interests of the child based on some of these factors:

• How agreeable and cooperative a parent is in matters relating to the child
• How willing a parent is to accept custody
• How the child interacts with parents and siblings
• Instances of domestic violence
• The general safety of the child
• The child’s preference (given the child is of age to make educated decisions)
• Each parent’s home environment 
• The child’s educational possibilities
• How much time the parent and child spent together

For related information, read our guide: Understanding NJ Child Support: What You Need to Know Now and In the Future

Types of Child Custody in New Jersey

Before we can look at the types of NJ child custody, we need to review some key terms. There are two types of child custody in NJ that parents need to understand: legal and physical.

Legal custody refers to the legal ability to exercise a degree of control over the child’s future. This includes making short-term and long-term decisions. When a parent has legal custody, they decide what doctor they see, what religion they practice, and what school they attend. We’ll cover this in-depth later, but parents can share legal custody in many instances.  

Physical custody refers to the ability to spend time with the child unsupervised and make basic decisions for them. You may sometimes hear it called “parenting time.” When a parent has physical custody, they decide what food the child eats, what time they sleep, when they bathe, etc. 

Let’s explore each type of custody arrangement in New Jersey. With this overview, you can determine which is best for your situation.

Joint Legal Custody

Joint legal custody is the preferred child custody arrangement in most cases. For this reason, it is also the most common outcome during a divorce. In this arrangement, each parent maintains legal decision-making power over their children. They are responsible for their welfare, medical, and educational decisions. This arrangement also means both parents can maintain an active relationship with their children.

In a standard case, the child lives with one parent most days of the week. Since the child is under their custody most of the time, the parent is labeled the custodial parent. This will be the child’s primary residence.

The other parent retains custody, but the child does not primarily live with them. Thus, they become the non-custodial parent. This parent’s home serves as an alternate address for the child. 

Although this is labeled Joint Legal Custody, the custodial parent handles the child’s day-to-day decisions. They decide what clothes to wear, prepare their meals, and make decisions that are in the best interest of the child. However, the non-custodial parent can make all the same decisions when the child is with them.

The custodial parent will spend more time with the child, causing them to spend more money. To make up for this, the non-custodial parent will likely need to pay child support to the custodial parent.

That said, both parents have an equal say when making large decisions. For example, both parents should discuss issues like education, religion, and health care. 

Sole Legal and Physical Custody

Read this section carefully if you want to know how to get full custody in NJ.

Obtaining a Sole Legal and Physical Custody arrangement is rather rare since it prevents the child from having a relationship with the non-custodial parent. NJ courts recognize that limiting a parent’s involvement isn’t generally in the child’s best interests. 

However, custody laws in NJ seek to protect the child. For this reason, one parent will often receive Sole Legal and Physical Custody in cases of abuse or other dangerous situations.

When this occurs, the custodial parent has complete control over the child and has sole decision-making power. The child lives with that parent, and that parent controls every decision for that child. 

Under NJ child support laws, the non-custodial parent will likely need to pay child support to the custodial parent. These funds will help the child maintain the standard of living they had before the divorce.

Shared Legal and Physical Custody

This arrangement is generally preferred since it allows children to spend equal amounts of time with each parent. This differs from joint legal custody, where the child primarily lives with one parent.

Typically, parents create arrangements to allow their children to spend time at one another’s home. There is no set standard for this form of custody. In some cases, children spend several weeks with one parent at a time. In others, the child might go between homes several times per week. 

Likewise, both parents must make decisions jointly since they both have legal custody. From clothing and food to school and vacations, the parents will share the cost of raising their child. However, NJ child support courts may still require the parent with a higher income level to pay child support to the parent with lower earnings. 

NJ child custody issues are complex and often emotionally charged. Take advantage of our free consultation offer to see how an experienced NJ child custody attorney can help you.

Are There Any Other Custody Options Available in New Jersey?

If the above options don’t fit your situation, you can speak with your ex to create a better custody arrangement. 

The custody laws in NJ allow parents to create custody arrangements on their own. According to N.J.S.A. 9:2-4(d), the court must agree with the parents’ plan unless it is “contrary to the best interests of the child.”

NJ Child Custody in a Tri-parenting Arrangement

Typically, NJ child custody agreements involve two parents. 

However, courts now handle the concept called “tri-parenting.” This issue arose in a recent court case involving a same-sex married couple and their female companion.

In this case, two men agreed to raise a child with a woman after she had conceived the child with one of the men. All three adults took parenting classes and held separate baby showers. They also prepared their homes for the child to live with each party.

Despite all this planning, the arrangement did not last. For years following the child’s birth, the three parties co-parented without issue. However, the mother married someone else and decided to move to California with the child. 

Unable to resolve custody and parenting issues, the married men filed a complaint. They wanted full legal and physical custody. In this case, the court labeled the female as a “psychological parent.” For this reason, the court did not want to separate her from the child.

Since all three adults had parental rights, the court ruled that they must share custody. That said, the mother could not move to California. The distance and need to travel were not in the child’s best interest.

Read more: New Jersey Family Law Includes Tri-Parenting

Custody is more complex than you may think. If you believe you have parental rights, call (732) 659-4109 to speak with a NJ child custody attorney.

What happens when parents can’t decide on a custody arrangement?

If parents can’t come to a mutual decision, the court will order them to participate in mediation. During this step, each side will negotiate on a custody agreement with the help of a neutral third party. Keep in mind that NJ child custody courts will not recommend mediation when issues like domestic violence are present.

When all else fails, the court can decide on an arrangement for you. N.J.S.A. 9:2-4(e) states, “In any case in which the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody.” 

During this process, the court may order a custody evaluation. During this evaluation, a mental health professional studies the child’s circumstances. They will observe how well each parent meets the child’s needs. The evaluator will then make a non-binding recommendation to the court. They typically advise the court on issues regarding child custody and visitation rights. 

Read more: What You Need to Know About NJ Child Custody Evaluations, and The Do’s and Don’ts of NJ Custody Evaluations.

That said, the judge will have the ultimate say on the matter. 

The court can also order the Family Division to investigate the case. According to New Jersey Rules of Court §5:8-1, investigators can look at these factors:

• The character and fitness of the parties
• The economic condition of the family
• The financial ability of the party to pay alimony or support or both
• The parties’ homes, which shall be limited to a factual description of the home where the child will reside or visit
• Appropriate child safety precautions in the home
• The number of household members and their relationship to the child
• Criminal record checks for both parties

Changing Your NJ Child Custody Arrangement

You may become worried about making permanent, life-long decisions during this process. Luckily, NJ child custody courts understand that family situations can change.

If an arrangement has been made but is no longer viable due to changed circumstances, you may revisit the agreement. Speaking with the other parent is the easiest way to change your custody agreement. If they agree, you only need to update your agreement. 

If the other parent does not agree, you may need to file a modification petition. Since a judge needs to approve this change, you will want to hire a NJ child custody attorney. They can help you gather evidence, file the petition, and present your case to the court. 

Changing a NJ Child Custody Arrangement When the Custodial Parent Dies

As we’ve discussed, child custody is typically decided in the best interests of the child. Unfortunately, circumstances can become worse when the custodial parent passes away.

In New Jersey, there is a presumption that the living biological parent assumes custody when a custodial parent dies. When both parents have been very involved in the child’s life, this is usually a non-issue. Unless the non-custodial parent cannot care for the child, they often get custody.

However, another person in the child’s life may believe that they should retain custody of the child. In this case, they may argue that they are better suited to care for the child than the surviving biological parent. This can be anyone from another relative to the custodial parent’s significant other. 

In disputes like these, courts turn to Watkins v. Nelson, 163 N.J. 235.

Essentially, the Fourteenth Amendment provides the biological parent with privacy rights. For this reason, they have the presumption of custody. 

However, the presumption in favor of the biological parent can be overcome. This usually happens by “a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances’ affecting the welfare of the child [.]” Watkins, supra, 163 N.J. at 246.

Read more: Child Custody When a Custodial Parent Dies

If you find yourself in a custody dispute involving a non-parent, call Fabrikant Law at (732) 659-4109. 

What if my ex-spouse wants to move out of state?

Parents often have several valid reasons for wanting to move. Perhaps they found a new job, a better school for the child, or need to care for an ailing loved one. In any event, a parent cannot move without seeking permission. 

If your ex-spouse has custody and wants to move out of the state, they must consult you. Should you agree to the move, then you only need to update your custody agreement. 

If you don’t agree to the move, then your ex-spouse must seek permission from the court. When this occurs, the court will evaluate the best interests of the child relative to the move.

Keep in mind that this only applies when parents have joint legal custody. It does not matter if your ex is the Parent of Primary Residence or the Parent of Alternate Residence. Even if you have equal custody, they must seek permission to move with your child.

Learn more: NJ Supreme Court Reverses Sixteen Year Ruling Regarding Child Relocation.

What if my ex-spouse does something I disagree with?

As we stated above, custody is defined as legal custody and physical custody. If you disagree with how your ex-spouse is handling something, the discussion is rooted in their degree of custody.

For example, your ex can decide when your child sleeps and what they eat whenever they have custody. No matter what rules you have at your house, they can have an entirely different set at their house. In cases like this, your ex has physical custody and is within their rights. Unless something is harming your child, your best course of action is to speak with your ex. 

In other cases, your ex-spouse may do something that is not in your child’s best interests. Examples can include living with people who pose a threat to your child or failing to care for your child’s health. In some of the worst cases, your ex-spouse may try to turn your child against you.

When instances like these happen, you need to speak with a NJ child custody attorney. They can help you address these issues and come up with a solution. 

Is your ex-spouse acting against your child’s best interests? Do you want to learn how to get full custody in NJ? Call Fabrikant law at (732) 659-4109. 

What do I do if my ex-spouse refuses to turn over the kids or is late?

Some parents like to push the boundaries regarding custody and parenting time. In minor cases, you can address the issue with a simple conversation. Be sure to remind your ex-spouse of your parenting agreement. 

When your ex-spouse is consistently late or refuses to return your child, then you need an experienced NJ child custody attorney. The sooner you address the issue, the better the results will be. 

In cases like this, your attorney can file a motion to enforce litigant’s rights. This motion asks the court to enforce the parenting orders you and your ex-spouse agreed upon. If they do not comply, the court can impose penalties on your ex. 

N.J.S.A. 2C:13-4(a) also gives you the right to file an incident report or a criminal complaint for interference. 

Using your parenting agreement, you can show a judge that your ex-spouse is not following the agreement. If the court agrees, they may impose penalties on your ex or even alter the parenting arrangement.  

These changes can include:

• Allotting extra parenting time to the parent who has lost time
• Changing the transportation arrangements for visitation
• Changing the designated pick-up location
• Changing the primary residential parent

The court can also order your ex-spouse to adhere to the following:

• Pay for your attorney fees and court costs
• Attend parenting classes
• Pay for counseling (for you or your child)
• Pay for costs from non-compliance with court orders

Fabrikant Law – Your trusted NJ child custody law firm

Divorce and child custody are never easy. You may feel alone, confused, and overwhelmed by the process. No matter your situation, you need a NJ family law attorney to help with the process. 

Whether you want help negotiating a custody agreement or want to know how to how to get full custody in NJ, Fabrikant Law is here to help. We will review your case and explain how the custody laws in NJ apply to your situation. 

We will be a compassionate and helpful resource throughout the process.

Call Fabrikant Law at (732) 659-4109 to speak with a NJ child custody attorney.