Attorneys Determine Child Custody and Parenting Time
Under NJS 9 § 2-4, the New Jersey legislature has determined that it is in the best interest of minor children to have regular contact with both parents. To that end, New Jersey finds that both parents have equal rights in custody determinations. Therefore, when parents are separated or divorced, it appears that the State prefers joint custody.
What is Custody?
Custody is the legal delineation that a court provides to parents with regard to their children. Legal custody specifically addresses the legal authority to make decisions concerning the general health, welfare, and education of the child. Conversely, physical custody refers to where the child actually lives. As is the case with all divorce-related issues, custody can vary from case to case.
Types of Custody
There are different types of custodial arrangements and orders. Under the statute, the following types of custody may be ordered:
- Joint custody: custody is given to both parents, consisting of legal or physical custody, this includes living arrangements permitting the child to reside solely with one parent or to alternate between parents. Furthermore, the parents are required to consult with each other in making major decisions regarding the child’s health, education and general welfare.
- Sole custody is custody given entirely to one parent, with parenting time to the other (non-custodial) parent. The sole custodian is charged with making all decisions concerning the child without the need for consultation with the other parent.
- Any other custody arrangement in the best interest of the child, which may involve a hybrid situation with various aspects of sole and joint custody.
What Factors do the Courts consider in making an Award of Custody?
First, the issue of custody is usually brought to the court by a separation, divorce, or by a motion filed by either parent. In making a custody determination, the court will hear the argument, take testimony if necessary, and consider all relevant materials. In determining what is in the best interest of the child, the court will consider several factors as noted below:
- the parents’ ability to co-parent in the sense that they can communicate with each other and cooperate when it comes to the child;
- whether the parent is willing to be a custodial parent and their respective refusal to allow parenting time without merit (no substantiated abuse).
- the interaction and relationship of the child with its parents and siblings;
- any domestic violence in the home whether past or present;
- the safety of the child and the safety of the parent from physical abuse;
- whether the child is of sufficient age to intelligently reason and advise the court of his preference in living with either parent;
- the overall needs of the child;
- the safety and stability of the home environment;
- the quality and continuity of the child’s education;
- the fitness of either or both parents;
- the amount and quality of time each parent spent with the child prior to separation and after separating;
- the parents’ employment responsibilities and perhaps how often a parent would be unavailable due to work;
- the age and number of children.
The court weighs the factors above, as well as any other relevant factors. While specific circumstances may change, the one constant is the court’s priority of the best interest of the child when making the custody determination. The court can make any custody determination it sees fit, provided it is not contrary to the best interests of the children.
Example of how Custody can be determined
For example, John and Susan have two children and are seeking a divorce. John’s works two hours away from home and often works 70 hours a week. Susan is a school teacher and works 8 until 3 daily, where her children attend school. In the past, Susan has consistently been the parent responsible for the general health and welfare of their two kids. She takes them to school, cares for them after school, prepares their meals, helps them with homework, and takes them to all extracurricular activities. John was usually working and would often leave for work prior to the children leaving for school and would return after they went to bed. He was not the parent responsible for their general health and welfare.
In the case described above, you could hypothesize as to how the court may apply all of the variables to determine what is in the best interest of the child. It is not that John did not care, but rather that his role was different based upon his work responsibilities. It is therefore unlikely that the court would give John sole physical and legal custody. It is more likely that the children would be better suited to sole physical custody with Susan or joint custody with both parents. While this example is extreme, it does allow you to begin to see how an arrangement may be arrived upon in a given case.
Contact our Child Custody Attorneys Today
When entering into a child custody dispute, parents often realize how legally and emotionally complicated it can become, especially with respect to their children. We, at Jacobs Berger, fully understand the sensitive nature of such disputes. We help families, going through a divorce or seeking child custody agreements, by finding constructive solutions that protect the relationships and financial stability of our clients.
While we are, of course, ready to aggressively defend the rights and future of any of our clients in a court of law, we will always first seek to resolve their legal matters through negotiation and open and honest communication.
To speak with our attorney team today in a comprehensive and confidential Strategic Planning Session regarding your divorce or your child custody agreement, please contact us online, or through our Morristown, NJ office at (973) 710-4366.