I recently had the chance to advise a client at the beginning of a divorce. The only real issue between her and her soon-to-be-ex is custody. Unfortunately, her husband lives several states away. The residential custodian is likely to have the kids almost 100% of the time, with the noncustodial parent visiting once a month (if that). Like most new mothers, she loves her children more than life itself. Obviously, losing custody is not acceptable.
She is still quite hopeful that things will resolve amicably. No trial should be necessary. Nonetheless, I felt it was important that she keep the possibility of trial in the back of her mind. It’s important that custody, of all issues in divorce, be addressed with a long-term strategy in mind. Here, the immediate objective is to engage her husband in friendly negotiations, without the involvement of attorneys, to reach a mutually agreeable solution. Long-term, she needs to prepare for a fight.
In situations like this, there are two important steps to take as soon as possible:
1. GET TO KNOW THE CUSTODY FACTORS, AND START PLANNING.
There are fourteen factors in New Jersey that govern custody. The statute is N.J.S.A. 9:2-4, and it provides in relevant part as follows:
In making an award of custody, the court shall consider but not be limited to the following factors:
- 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, if any;
- the safety of the child and the safety of either parent from physical abuse by the other parent;
- the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
- the needs of the child;
- the stability of the home environment offered;
- 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 prior to or subsequent to the separation;
- the parents’ employment responsibilities; and
- the age and number of the children.
Despite each of the specific factors, a custody determination will always be determined by the “best interests” of the children. “Best interests” has been defined by the New Jersey Supreme Court as “the safety, happiness, physical, mental, and moral welfare of the children.” That final qualification, “moral welfare,” is probably of less relevance today than it was when that definition was first created in 1956. As with all things in family court, however, it depends on the judge.
Finally, unlike in past decades, there is no longer a presumption in favor of the mother. All custody determinations are gender neutral, and this has resulted in an explosion of 50/50 custody awards in recent years.
With a mind to each factor of the test and toward how your specific judge will view the “best interests” issues, begin to reshape the circumstances of your life in a manner that the Court will find acceptable. Do not downplay the seriousness of things like past substance abuse, mental health issues, or an inappropriate living situation. You can be damn sure the opposing party isn’t going to let it slide. Get in treatment. Start seeing a psychologist. Not enough rooms in your house for all the kids? Move.
Additionally, start to gather evidence both of your fitness as a parent and of the opposing party’s unfitness. Demonstrate that you value education and will have a strong family support network to help raise the kids. If you have custody currently, make sure that your kids are doing well. Be able to demonstrate that they’re doing well through tangible and definitive evidence (e.g., report cards). Does your soon-to-be-ex have DUIs? Better get the records. Drug use? Poor family relations? You should be attempting to document everything and anything. Even evidence of seemingly innocuous irresponsibility can help sway a judge in your favor.
You know the facts of your situation better than any attorney. Meet with a lawyer and have a frank and honest discussion about what has happened, what is happening, and what is likely to happen soon in your life. He or she will help you evaluate the strengths and weaknesses of your custody case, and together you can actively work to ensure that custody decision will be a no-brainer for the judge.
2. RECORD YOUR COMMUNICATIONS.
As far as evidence of unfitness is concerned, recorded communications are often the best. You are probably well aware of the crazy things people will say when they believe no one but their husband or wife is listening. Fortunately for attorneys (and for you if you’re reading this), New Jersey is what’s known as a “one-party consent” state. That means only one party to a conversation needs to give permission to record it. If you’re talking with your soon-to-be-ex, that party can be you! As long as your spouse is in New Jersey, record away. If he or she is in another state, call an attorney to discuss this issue.
Don’t you have a smartphone? Get one. You should be recording every single communication between you and your spouse from here on out. You never know when he or she will say something that has a substantial effect on custody. Without a recording, those words simply disappear into thin air right along with your chance at having custody locked up. You can testify up and down that a conversation occurred, but the other party will almost certainly deny that it ever happened, and the proceeding turns into a “he said, she said” mess. So many litigants choose to lie in family court that judges get jaded. It’s inevitable. Even the most outrageous allegation (perhaps especially the most outrageous allegations) ring hollow in family court without definitive proof.
But once it’s on tape, there’s no denying it in the future. All the other party can do is try desperately to minimize the damage.
The same is true of written communications. Email is preferable, but text messages are an acceptable alternative. The content of an email is stored indefinitely on your email provider’s servers. The content of a text message, however, may only be stored for a few days by the phone company. Afterward, once it’s deleted by the parties, the only record with your cell service provider will be a date and time (which is not much use in Court). Be careful in that regard.
As always, call your attorney if you’re likely to encounter a serious custody dispute. There are few things in this world more important than the safety and welfare of your children, and the Court will be extremely reluctant to readdress custody once it’s been set at trial. Get it right the first time.
DeTommaso Law Group