Parents face many questions when going through a divorce—from how their children will experience the process to what the final child custody arrangement will look like.
While going through a divorce may be daunting, for most people, it can be beneficial in the end. Below, we delve into some common child custody FAQs so that you can begin the process with more information.
What is child custody?
Child custody is a legally defined relationship and parenting time rights with a child. In New Jersey, the term “child custody” refers to both legal custody—the right to make long-term decisions for a child, such as around health or education—and physical custody, or living with/time-sharing with the child.
New Jersey courts tend to make child custody decisions based on what they believe is in the child’s best interest. In most cases, this means the child having a relationship with both parents. The courts tend to prefer a 50/50 split whenever possible, but the Court also realizes that this may have imitations in various situations.
What’s the difference between legal and physical custody?
Legal custody is the right to make larger-scale decisions for your child, such as where they go to school, what their non-religious or religious upbringing looks like, or the right to make medical decisions for the child. Physical custody refers to where the child lives.
New Jersey includes both legal and physical custody in the umbrella term “child custody.” Under joint legal custody, both parents share in the decision-making process. The specifics of that decision-making are defined by the agreement, Court Order or case law that applies (rather than the amount of parenting time), but there are exceptions on a case by case basis.
How is child custody determined in New Jersey?
In New Jersey, child custody is determined according to what the courts believe is in the best interests of the child. Family courts generally view having a relationship with both parents as important for the child and begin with the premise that a child spending equal time with both parents is preferable. However, the court understands that time sharing may not be ideal with an even split, and will look at various factors when determining what is best for each family.
They will also consider the parents’ ability to communicate with each other and whether or not they seem to encourage the child in having a relationship with the other parent. Relationships with siblings, which parent has been the primary caregiver so far, and continuing current educational routines are considered, too, along with other factors including in the custody statute. Additionally, if the child is older than twelve, the courts may factor in the child’s preference as to schedule and time-sharing, though that is never a determining factor.
Unlike child support, New Jersey’s child custody laws don’t contain a set formula for determining the time each parent gets with the child. Parents can make their own arrangement, either during litigation, or in mediation, according to what makes sense for their unique situation.
However, once a divorce agreement has been signed and processed by the court, it’s the same as having a court order, meaning that the agreement is binding.
Can anyone other than a biological parent gain custody of the child?
If both parents are determined to be unfit or unable to care for the child, then it’s possible for a third party to be awarded custody. This may be a grandparent or family friend who already has a relationship with the child.
If a friend or relative is granted custody of the child, it’s still possible for a parent to regain custody down the line—depending on what the initial issue was and what has been done to address or change it.
Please note that custody is different from parenting time or visitation. Grandparents can file a petition for visitation rights, but they must prove that not visiting with the child will result in harm to the child. This is a large burden of proof.
Moreover, if the grandparent can prove that the child will come to harm if the grandparent isn’t there, then the parent is probably not able to give the child the full care they need at this time.
How does child custody differ for children with special needs?
For children with special needs, many parts of the child custody process are similar, but extra consideration should be given by the parents- and the court- to where the parent who will have physical custody resides—and specifically, the school district they reside in.
Consistency of routine may be even more important for a special needs child than other children, and this can be especially true of educational routines.
Parents should decide together which school district they think is best for their child. If parents have shared residential custody and live in different districts, then the two school districts may need to split the child’s educational costs. Either way, a divorce agreement will typically have stronger requirements for a parent to discuss moving with their co-parent before doing so.
Child support payments will differ, too. For instance, child support may be paid into a Special Needs Trust in order not to disqualify the child from certain services. Likewise, child support may need to be adjusted if the child needs care beyond age eighteen.
What are the different types of parenting time and/or visitation?
In addition to distinctions between physical and legal custody (see above), there are also differences between joint custody and sole custody.
In New Jersey, joint custody, which can also be defined as shared residential custody, refers to any time co-parents have time with their child and they both have decision-making rights with their child. With joint custody, both parents are considered custodial parents.
It’s also possible for parents to have joint legal custody while one parent has primary physical custody (also known as primary residential custody) of a child.
If a parent is awarded sole custody, then the child will live with them most or all of the time and they will also get to make legal decisions for the child alone. A parent may also be awarded sole legal custody of a child, while continuing to share time with their co-parent.
If one parent has sole physical custody of a child, depending on the circumstances which led to the custody award, the other parent may still have parenting time, also known as visitation. This is time a parent spends with their child. New Jersey courts prefer the term “parenting time” over “visitation” because it doesn’t imply that one parent’s relationship with the child is more important than the other’s.
Do you need a child custody attorney?
While it’s possible to represent yourself in court, we always recommend at least scheduling an initial consultation with a child custody attorney before making the decision about whether or not to proceed alone.
The reason for this is that the court system can be confusing to those who aren’t familiar with the precise way in which everything must proceed. Additionally, court staff aren’t allowed to give you legal advice or even opinions. Especially with child custody, the decisions are based on your family’s specific circumstances, and it’s good to have someone familiar with the nuances to help guide you as to your rights- and your options.
At Jacobs Berger, our family law attorneys have extensive experience in handling child custody cases with all kinds of family structures. We understand that every family’s situation is unique and take pride in our ability to come up with creative, forward-thinking solutions.
If you’re getting divorced and have questions about child custody issues, contact us today to schedule a strategic planning session.
