Legal Services - Child Custody

When it comes to divorce or separation, there is no issue which has more impact on a child's life than that involving child custody.

Before engaging in expensive and emotionally draining litigation, it is important to understand the three different types of custody:

1. Sole Custody

New Jersey statutes promote the idea that both parents should be extensively involved in their child's life. Sole custody puts the power of raising the child on a day-to-day basis with one parent. This type of custody is becoming outdated.

2. Joint Custody

This allows both parents to have a significant role in raising their child. However, the term "joint legal custody" has nothing to do with the time sharing arrangements between parents. Therefore, parents can share joint legal custody, but one of the parents will still be designated the "primary residential parent." This means that in all matters of any significance involving the child, the parties must consult and agree to a resolution.

3. Shared Legal Custody

Over the past several years, the concept of Shared Legal Custody has gained more acceptance. This does not mean, however, that each party necessarily has 50 percent of the time with the child. It simply means that negotiated parenting time is scheduled, something well-beyond the traditional "every other weekend." Shared Legal Custody also impacts the child support obligations of the individual parties.

Best Interest of the Child

Overriding all of these labels is the concept of "best interest of the child." New Jersey has particular criteria which are examined by the courts such as: the mental and physical health and the historical involvement of the two parents, the physical and emotional environment, as well as educational opportunities. A skilled family law practitioner should be able to work with his or her adversary to negotiate these issues. In New Jersey, the courts have set up specific procedures to help resolve custody cases before they ever reach the courts. These programs vary from county to county, but are often times quite effective in helping parties resolve their dispute.

If the parties are still unable to resolve their differences, the last resort is litigation. Litigation empowers a judge to make a decision that will impact the child's life forever. A trial is a long and arduous process involving testimony of mental health professionals and any and all other witnesses that each party wishes to call. It is extremely expensive and, of course, unpredictable.

Custody Litigation in New Jersey

New Jersey courts observe the following rules involving custody litigation.

Parents and children are entitled to have the case decided on an expedited basis in order to minimize disruption. It is likely that each party (often including the children) will undergo extensive custody evaluations. These can include: psychological assessments, emotional analysis and willingness to cooperate with the other parent to foster the relationship.

Depending on the age of the child, the court will normally interview him or her. This is done privately in a judge's chambers on a very informal basis. The child's preference is not determinative of the outcome until he or she reaches 13 or 14 years of age. Even then, the court is not bound by the child's wishes.

Regardless of the court's decision, depending on the age of the child and the circumstances surrounding the parent, any showing of a substantial material change in circumstances or environmental circumstances which might be detrimental to the childıs emotional or physical well-being, can result in a modification of the custody agreement.

Removal

Neither party has the right to move or remove the child from the jurisdiction in which that child lives, without specific consent or a court order. Such activity would virtually eliminate that party's involvement in the child's life.

The fight for custody does not have to be a traumatic experience for your child. By following these guidelines, and with the help of an experienced family law practitioner, you should be able to settle your custody and visitation rights in a quick and peaceful manner.