When you take a cross-country trip with your child, it requires detailed planning and preparation. You have to be able to negotiate your way through unexpected detours, bathroom breaks—and the ever-present question in the background: “Are we there yet?”
Navigating child custody is much the same. While it may feel like you’ll never reach your destination, it is possible—and may not be as far away as you think. With the help of an experienced child custody attorney, you can find creative solutions that balance the best interests of your children with the needs (and desires) of you and your co-parent.
With that being said, you probably have many questions. “What will the journey look like?” “What do I need to know?” “How can I prepare?”
What Types of Custody Exist in New Jersey?
There are two main types of custody recognized in the courts of New Jersey: physical custody and legal custody.
Under these umbrellas, there are also different kinds of arrangements:
- Legal custody
- Sole legal custody
- Joint legal custody
- Physical (otherwise known as residential) custody
- Sole physical custody
- Shared physical custody
- Joint physical custody
- Split physical custody
These are not the only possible arrangements—New Jersey law gives courts a wide berth for crafting custody arrangements as long as they are determined to be in the best interests of the child. Working with an experienced child custody attorney can help you explore the options for your family.
What’s the Difference Between Physical and Legal Custody?
Talking about child custody can be challenging. Parents have strong feelings about their time, relationship, and role in their child’s life. Having a solid understanding of the differences between physical and legal custody can make it easier to clarify what’s important to them in their child custody arrangement.
Legal custody refers to the right of a parent to make significant decisions concerning the child’s health, safety, education, and wellbeing, such as:
- Where the child will go to school
- How medical decisions are made on their behalf
- Whether or not they’ll have a religious upbringing
New Jersey courts generally prefer to award joint legal custody to both parents, meaning that both parents have the right to participate in making these decisions for the child. Sole legal custody, though, may be awarded in cases where a parent is found to be unfit (for example, in the case of a parent who may endanger the safety of the child) or in a case where the parents demonstrate to the court that they cannot make joint decisions and the lack of decision making is actually harmful to the child.
Physical custody, also known as residential custody, refers to which parent the child lives and spends time with.
Since the New Jersey courts believe that having an active relationship with both parents is in the child’s best interest, they prefer to award custody to both parents and craft a time-sharing arrangement that can range from equal time in both homes to schedules where one parent has less (but still substantial) time than the other.
It’s also more common than in the past for sole physical custody to be awarded. In this case, the child will spend most of their time living with the custodial parent, although the non-custodial parent will usually still enjoy some parenting time with the child. This may also mean that one parent has full custody, and the other parent may not have time-sharing arrangements.
Understanding the Child Custody Process
Even if you and your co-parent don’t agree on everything, co-parents may be able to work with a skilled attorney to draft a child custody agreement that serves the family’s needs in a fair and balanced way. Often, this process will involve Alternative Dispute Resolution (ADR) methods such as mediation.
During mediation, an experienced, neutral third party will work with the co-parents to arrive at an agreement that balances each parent’s needs and wishes while also protecting the best interests of their child or children. ADR approaches can also provide a low-stress solution for unmarried co-parents and parents in complex family structures.
You can also work with your attorneys to come to an agreement, the terms of which will be documented in your Marital Settlement Agreement. You may use the services of a mediator to get to this place, even if your divorce began as a contested divorce and you entered the court system. Settlement can happen at any time, even if pleadings have been filed.
It may not always be possible for co-parents to agree on all aspects of child custody. When child custody matters proceed through the courts and ultimately end up at a trial (as in the case of a litigated divorce), the NJ courts will make custody decisions based on what they judge to be in the child’s best interest.
During a litigated divorce, New Jersey courts will make both legal and physical custody decisions based on what the courts believe to be in the child’s best interest—and unless they have good cause to believe otherwise, the courts believe that the child benefits from having a continuing relationship with both parents.
For this reason, the NJ courts will grant joint legal custody and parenting time to both parents in the majority of cases. You and your co-parent may still need to agree on a parenting time plan, which lays out agreed-upon schedules and guidelines for how parenting time will be shared. If your matter ends up at trial, you and your spouse will each present your plan to the court, and the judge will ultimately decide what time-sharing plan it believes is in your child’s best interest.
An experienced New Jersey child custody attorney can work with you and your co-parent to draft a parenting time plan that serves your family’s needs and sets important guidelines and boundaries for possible future changes, such as one co-parent meeting a new significant other.
For unmarried co-parents, child custody proceedings are similar to those during a divorce proceeding. Unmarried parents (and other caretakers, depending on the facts of the case) have similar rights under New Jersey law, and the courts will favor joint legal custody and parenting time for each parent in most cases.
Fathers may need to go through a legal process to establish paternity. This can be done by having the co-parents sign a Certificate of Parentage. In cases where co-parents can’t come to an agreement on the child’s parentage, paternity may need to be established through a court-ordered paternity test.
Factors in New Jersey Custody Decisions
Most of the time, parents can work together to develop a mutually agreeable child custody arrangement. If parents cannot agree, the courts may intervene to decide what custody arrangements are in the child’s best interest.
Since the state of New Jersey considers an active relationship with both parents to be in the child’s best interest in most cases, this will usually mean joint custody and a relatively equal split in parenting time.
Several factors may influence child custody decisions, including:
- The parents’ ability to communicate and cooperate together
- The child’s existing relationship with each parent
- The financial and living situations of each parent
- Whether each parent is able to provide a safe and secure environment for the child
- Any history of domestic violence on the part of either parent
Depending on the facts of the case, it may be necessary to bring in professional support. Doctors, therapists, and other mental health professionals can help the parties and their lawyers (and the court when necessary) evaluate the situation and provide insight into what course of action may be in the child’s best interest.
How to Modify a Custody Agreement
Child custody decisions are made based on a family’s current circumstances—but circumstances can change over time in ways that make the initial custody agreement or order from the court less fitting. If you or your co-parent experience major life changes that you believe should impact your custody arrangement, you may be able to seek a child custody modification.
In New Jersey, a child custody agreement or court order can be modified in one of two ways:
1) If both co-parents agree to the change, they can work with an experienced child custody attorney or mediator to negotiate, draft and sign a consent order modifying the agreement or order.
2) If the co-parents can’t come to an agreement, but one parent believes a modification is justified, they can file a motion with the NJ courts.
However, it’s worth noting that the courts will only grant a modification if they find that there has been a change in circumstances, such as the relocation of a parent or a significant change in one parent’s work hours. The courts won’t grant a modification simply because one co-parent feels dissatisfied with the arrangement.
Work With an Experienced Child Custody Lawyer
The family law attorneys at Jacobs Berger, LLC have years of experience helping parents navigate child custody. We aim to de-stress the process for clients by taking a compassionate, communicative approach to all the issues you might encounter.
Whether you’re looking to draft a child custody agreement, need help establishing a fair parenting time schedule, or want to pursue a child custody modification, we can work with you to help you find creative solutions that fit your family’s needs.
To get started today, contact us to schedule a strategic planning session.