For many litigants, custody of their children is the most important determination at issue during the divorce.
This portion of the Guidebook will address: (1) the “best interests” standard; (2) types of custody (legal vs. physical); (3) how Courts set custody; (4) how Courts enforce custody; (5) how Courts change custody; and (6) relocation by the custodial parent.
In any custody matter, the ‘best interests” of the child is the primary and paramount consideration for the Court. “Best interests” means the safety, happiness, physical, mental, and moral welfare of your child.
No matter what, the Court should seek to protect the child’s interests first, even if that means sacrificing the interests of one parent or the other. It’s public policy in New Jersey to ensure parent frequent and continuing contact with their children. A parent’s right to the companionship of a child is a fundamental interest protected by both the United States and New Jersey Constitutions. Further, in any custody dispute, the rights of both parents are equal. Even so, the Courts clearly have the ability to restrict visitation where, for any reason, it would not be in the best interests of the child.
Although there is a clear distinction between legal and physical custody from a technical standpoint, many litigants, attorneys, and even courts confuse the terms. Legal custody refers to the authority to make major decisions regarding the child’s welfare. Such decisions might include major medical treatments, religious upbringing, or the choice of an educational institution. Physical custody, on the other hand, is exercised by the parent with which the child is physically present and who retains responsibility for minor day-to-day decisions. Physical custody is often referred to as visitation or parenting time. Notably, the term parenting time is now preferred.
Custody may be exercised in wide variety of arrangements. There is a legislative preference, however, for custody arrangements that permit both parties full and genuine involvement in the lives of their children, and that preference is gender neutral. In determining custody, the rights of both parents are equal. The Courts set custody in relation to the following factors:
Joint legal custody is preferred, but joint physical custody remains relatively rare (although it has considerably increased in prominence in recent years). The New Jersey Supreme Court has established a process for determining if joint custody (legal and physical) is appropriate. First, the court must determine whether a joint physical custody arrangement is in the children’s best interest. Joint physical custody means that the child lives day in and day out with both parents on a rotating basis and is often referred to as 50/50 parenting time. The Court explained that such a determination was not dependent upon both parents being equally involved in the child rearing process. Rather, it is only necessary that the child recognizes both parents as sources of security and love and continues relationships with both.
Second, having established the joint custody arrangement’s potential benefit to the children, the court must focus on the parents in order to determine whether they qualify for such an arrangement. At a minimum, both parents must be physically and psychologically capable of fulfilling the role of parent. In addition, they must each be willing to accept custody, although their opposition to joint custody does not preclude the court from ordering that arrangement. Further, a successful joint custody arrangement requires that the parents be able to isolate their personal conflicts from their roles as parents, and that the children be spared whatever animosity may exist between the two.
Third, where joint custody is not feasible, the court should consider awarding legal custody to both parents with physical custody to only one and liberal visitation rights to the other. The primary criteria for establishing a joint legal custodial relationship between separated parents centers on the ability of those parents to agree, communicate and cooperate in matters relating to the health, safety and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other. Such an arrangement preserves the decision-making role of both parents and approximates, to the closest extent possible, the shared companionship of the child and non-custodial parent that is provided in joint physical custody. Where legal custody is joint but physical custody is primarily with one parent, the primary care taker has the greater role in day-to-day decisions and greater authority to decide issues in the event of a disagreement between the parties.
In addition to those remedies typically available on finding that a party has violated a court order, the Court may order any of the following remedies, either singly or in combination:
Once legal and physical custody have been set, in any arrangement, applicants may subsequently apply to modify that arrangement based on “changed circumstances.” A judgment, whether reached by consent or adjudication, embodies a best interests determination. A party seeking modification of a judgment must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child. Best interests of the child means, among other things, the safety, happiness, physical, mental and moral welfare of the child. Moreover, absent an emergency, residential custody should not be changed without first holding a plenary hearing and interviewing the children.
Neither parent has a superior right to custody. A best interests determination is fact-sensitive, and the Court must balance the public policy which dictates that children of separated parents should be imbued with the love and respect for both parents with a consideration for the general welfare and happiness of the children. Nevertheless, the primary and overriding consideration of the court in assessing whether the parent seeking modification has met his or her burden is the best interests of the child.
As a result of the fact that the party requesting modification of a custody determination must meet the changed circumstances standard, getting the initial award right is of critical importance. If you fail to raise an issue prior to the initial custody award, you may be barred from raising that issue afterward. Under those circumstances, although the issue was not considered, circumstances have not changed. A skilled attorney can help you navigate the complexities of custody determinations and ensure the best outcome for you and your children.
When custody is disputed, we highly recommend reaching out to a qualified attorney to guide you through the process and argue on your behalf. Call the DeTommaso Law Group today at (908) 595-0340 to schedule an initial consultation and explore our services.
Where divorced parties have children together, relocation within or outside the State of New Jersey is broken down into categories based upon the parents’ particular custody arrangement. Before continuing, we must note that “relocation” refers to a change in residence. Temporary departures outside the State of New Jersey do not qualify as relocation for the purposes of this Divorce Guide.
Where parents share joint physical custody (i.e., a 50/50 parenting time schedule), a request to relocate outside the State of New Jersey is considered a request to change custody and is governed by that standard: the moving party must demonstrate changed circumstances and then that the modification is in the best interests of the children.
Where parents do not share joint physical custody (i.e., one parent is the primary caretaker/parent of primary residence), the law is quite a bit more complex. The moving parent must first provide at least some evidence that (a) there is a good faith reason for the move and (b) the move is not contrary to the best interests of the children. In considering whether this burden has been met, the Court will consider the following factors:
Once the moving parent has met that initial burden, the parent opposing the move has to provide evidence that the move will not be in the children’s best interests. The Court will consider whether the opposing party has met that burden by examining the same twelve factors set forth above. Obviously, not all factors will be relevant and of equal weight in every case.
It is important to remember that a mere change, even a reduction, in the noncustodial parent’s visitation is not an independent basis on which to deny removal. It is one important consideration relevant to the question of whether a child’s interest will be impaired, but not the only one. It is not the alteration in the visitation schedule that is the focus of the inquiry. Indeed, alterations in the visitation scheme when one party moves are inevitable and acceptable. If that were not the case, removal could never occur.
As far as relocation within the State of New Jersey are concerned, there is no requirement that the primary caretaker apply to the Courts prior to moving, and the noncustodial parent is legally prohibited from preventing the move. In other words, the Court has no authority to prevent the custodial parent from moving when that move is to another location inside the State, regardless of whether that move is 10 miles from Morristown to Livingston or 150 miles from Newton to Egg Harbor. This is an extremely important consideration during custody negotiations.
Even so, when one party relocates within the State, it may constitute a change in circumstances warranting modification of the existing custody arrangement. In determining whether the move justifies modification of custody, the Court should consider the twelve relocation factors outlined above and any other relevant considerations.
DISCLAIMER: The information presented here is of a general nature only, intended simply as background material, is current only as of the latest revision date in January 2015, omits many details and special rules, is not guaranteed to be accurate or applicable to your case, and cannot be regarded as legal advice. Viewing this information does not create an attorney-client relationship between the reader and the DeTommaso Law Group. We strongly recommend that those consulting the Divorce Guide secure the representation of an attorney, and we require that those consulting our Divorce Guide perform independent legal research and refrain from either acting or failing to act based on this information. Thank you.