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Top 12 Questions to Ask a Lawyer about Child Custody

By Sarah Jacobs, Esq.

Choosing to divorce can serve as a chance for a new beginning, and with the right support, it can even be an opportunity to grow closer with your children. That doesn’t mean that there won’t be some challenges, though—and parents navigating child custody issues will want to be aware of their options.

An experienced, compassionate child custody attorney will listen carefully to the details of your situation and answer your questions so you feel prepared and supported during the process. While there’s no way to fully capture that experience in a single list, there are some key concerns that many parents share.

Here are the answers to some common questions you may have about the child custody process in New Jersey.

Questions to ask your child custody attorney

1. Is there a difference between legal and physical custody in New Jersey?

The term “child custody” is often used to refer to both legal and physical custody, but they’re technically two separate things.

Physical custody refers to where the child lives or spends the majority of their time. Physical custody is also known as “residential custody.”

Legal custody refers to how significant decisions for the child are made, such as where they go to school, whether or not they have a religious upbringing, and how medical decisions are made on their behalf. Legal custody can also specify who makes these decisions and how they are made.

2. Which child custody laws pertain to my case?

Although New Jersey courts make child custody decisions based on the child’s best interest, the nuances of child custody law can influence case outcomes. 

The specific laws that pertain to your case depend on your family and your needs. That’s why it’s so critical to have open and transparent conversations with your child custody attorney—the more they know, the better they can help you plan.

For example, your job might require you to work a non-traditional schedule and you need to arrange your child custody and parenting time to reflect that. Your lawyer can help you identify your priorities and balance them with legal requirements and your child’s best interest. 

Navigating child custody concerns isn’t just about one parent getting what they want, though. Creating a clearly laid out plan for child custody with your attorney keeps everyone on the same page. This approach creates an environment for strong parent-child relationships, a stable co-parenting relationship, and a more positive outcome for everyone. 

3. How do courts determine which parent gets custody, and what factors are considered?

New Jersey courts believe that a child should maintain relationships with both parents, so long as it’s in the child’s best interests. In most cases, this means that both parents share time with their child and stay involved in decision-making.

During the divorce process, the courts have a variety of ways to assess a family’s situation. 

They may take testimony, read pleadings submitted by each side’s lawyers, and where necessary, conduct a child custody evaluation. Custody evaluations are usually conducted by a mental health professional who can, as part of the assessment:

  • Interview the child and co-parents separately
  • Observe the child with each parent
  • Talk with other important adults in the child’s life, such as step-parents, other family members (when appropriate) educators and doctors
  • Conduct psychological tests if needed
  • Review court documents

4. What does the court mean by the term “best interest of the child?”

New Jersey courts make child custody decisions according to what they determine to be in the child’s best interest. In this context, “best interest” refers to the child’s overall well-being, including but not limited to the following factors:

  • Physical health and safety 
  • Emotional well-being 
  • Each parent’s co-parenting skills 
  • Stability of home environments
  • Logical and practical concerns

The child’s preference may also be factored into decisions, particularly if they’re older as noted above. 

If both co-parents agree on what’s in the best interests of their child, then the courts will generally honor their plan. However, if co-parents can’t come to a child custody agreement, the courts will intervene and establish a child custody plan that they believe is in the best interest of the child. 

This process involves each parent submitting a child custody proposal. The courts may also order a professional custody evaluation, which will help the court determine the best arrangement for the child.  

5. What should I ask for in a child custody agreement?

We always recommend taking time to fully consider what you’d like out of your child custody agreement. What do you want your child’s life to look like? How does that mesh with your long-term plans? How do you want your child’s relationship with your co-parent to be? 

We realize that these may be hard questions to ask and that your answers may change during the process. Even so, it’s good to take the time to examine your intentions and clarify them with your attorney.

Like most parents, you probably want to spend as much time as possible with your children—and we know that “giving up” time with them can be hard. A supportive child custody attorney can ease this process by helping you identify important goals and priorities and using that as the basis of a plan that’s tailored to your family’s needs.

Most child custody agreements will involve time sharing with your co-parent, but how that’s accomplished can vary from family to family. Your attorney can help you arrive at a plan that works for you and your children.

6. Can my child decide which parent they’ll live with?

Legally, a child can’t decide who they’ll live with until the age of eighteen. However, the older a minor child is during the divorce proceedings, the more weight may be given to their preferences.

That said, we don’t recommend asking your child who they’d like to live with. 

While it’s perfectly normal to want to spend as much time as possible with your child, posing this question may put pressure on them, and we find that it isn’t always a helpful or constructive move. 

Instead, we try to help our clients identify their goals for their family, their children, and themselves, so we can support them through the process as child custody issues are resolved.

7. How do I file for custody?

A child custody attorney can help you file for custody as part of your divorce proceedings by gathering all relevant paperwork and filing with the court. You can also discuss what kind of custody and parenting time arrangement you believe is in your family’s best interest while your divorce is pending. 

If circumstances change after your divorce is finalized, a child custody lawyer can also help you file for a modification to your custody agreement or child support payments.

8. Do you need to file for custody if you’re unmarried in New Jersey?

In the state of New Jersey, an unmarried couple who has a child together and chooses to separate will need to establish a child custody agreement through a non-dissolution case in the Family Division of the New Jersey court system. 

Whether married or unmarried, both parents have equal rights to parenting time with their child, but filing for custody can allow for child custody details to be clearly set forth. These cases allow parents to: 

  • Establish legal paternity for the child (if necessary) 
  • Determine legal custody arrangements 
  • Define child support payments 
  • Designate a parenting time schedule 
  • Set visitation for grandparents and other family members

9. How does child custody impact child support?

From a legal perspective, child custody and child support are two different issues. However, the way you formulate your parenting time schedule can have an impact on child support, especially if you have an equal parenting time arrangement.

Even if physical custody is split exactly 50/50, some child support may still be required to be paid from one party to another. New Jersey considers a number of factors to calculate child support payments, including: 

  • Parental finances
  • How the children spend their time with each parent
  • Ages and number of children
  • Work-related childcare and health care costs
  • Pre-existing obligations to other children

For child support, custody is considered “shared” when each parent has their child overnight for at least 104 nights each year. Depending on how the parents share time, and the amount of fixed expenses one parent is obligated to pay for the children, support may be shifted between them.

Child support may last past the time parents have custody of the child. The standard age for child support to end in New Jersey is nineteen, which is considered the age of emancipation, but the state allows for child support to be extended. For example, there’s a strong precedent in New Jersey for child support payments to last through college.

These circumstances are fact-sensitive, though, so if you’re wondering how this law may apply to you, it’s best to speak with an experienced child support attorney.

In many cases, the court will set the amount and duration of required child support payments. However, you may be able to deviate from the required Guidelines if you can come to an agreement with your co-parent.

Can I deny parenting time if my ex doesn’t pay child support?

Missed child support payments come with a host of financial penalties for the payor and aren’t something to be taken lightly. If your co-parent has missed a payment or payments, they can face significant repercussions for their behavior.

However, whether you have sole custody or joint custody, you don’t have the legal right to deny your co-parent a visit with their child if they fail to pay child support. 

At Jacobs Berger, we realize it can be hard to work through issues with your co-parent, especially if you haven’t been receiving the child support payments you expect and rely on. Our child support attorneys help you resolve child support concerns in a productive, collaborative manner. If need be, we can also help you pursue the child support payments you’re entitled to.

10. Can a child custody agreement be modified?

Yes, if circumstances change for you or your co-parent, or for your child or children, your child custody agreement can be modified.

Financial changes for either party, work hour changes, relocation, lifestyle changes, illness, and changes in tax law are all common reasons for seeking a modification to child support payments or custody agreements.

11. How is a visitation schedule determined?

Visitation, more commonly referred to as “parenting time” in New Jersey, is a key part of your child custody agreement. Ideally, parenting time is determined by both co-parents coming to an agreement together. This offers a far more personalized solution than a ruling from a judge. 

However, if an agreement between co-parents isn’t possible, the court will make a final ruling. Additionally, New Jersey courts have pre-set holiday parenting time recommendations as a guide for parents. 

12. Do I really need an attorney?

While it’s always possible to represent yourself in a child custody case or divorce proceeding, even the New Jersey courts recommend working with an attorney. 

An experienced, compassionate child custody attorney can help to ensure that you’re aware of all of your options as you navigate child custody issues—and they can offer you valuable support and guidance throughout the process.

At Jacobs Berger, we believe that each family benefits from representation that’s tailored to their specific needs. Our strategic planning process dives deep into what really matters to you: what’s going on and what your goals are so we can collaborate on a path forward that helps you achieve them.

If you need child custody support, contact us for a strategic planning session. Our knowledgeable family law team is ready to support you through the process.

Contact Our Morristown Attorneys Today

At Jacobs Berger, our attorneys are experienced in protecting our clients across Madison, Randolph, Tewksbury, Morristown, and the greater Morris County area in all family law-related issues.

To schedule a strategic planning session with one of our experienced team members regarding your particular case, please contact us online or through our Morristown, NJ office at (973) 354-4506.