New Jersey Divorce Lawyers Experienced with Child Custody

Family court judges in New Jersey have enormous discretion in ordering any custody arrangement they consider to be in the best interest of a minor child. In determining custody, a court must be gender neutral. There is no presumption in favor of the father or mother; neither parent has a superior right over the other. Each case is unique and must be decided on its own merits.   Ali v. Ali, 279 N.J. Super. 154, 167 (Chancery Div. 1985).  In determining how custody shall be awarded, the court will carefully consider the:

  • Personal safety;
  • Morals;
  • Health;
  • General welfare; and
  • Happiness of the child.

The court will scrutinize the:

  • Character;
  • Conditions;
  • Habits; and
  • The surroundings of the respective parents.

Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952).

There are several factors that a court must consider before entering a final custody award. These factors are set forth in N.J.S.A 9:2-4 and include the following:

1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;

2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time where abuse is not substantiated;

3. The interactional relationship of the child with parents and siblings;

4. History of domestic violence, if any;

5. The safety of the child and the safety of either parent from physical abuse by the other parent;

6. The preference of the child when of sufficient age and capacity to make an informed decision;

7. The needs of the child;

8. The stability of the home environment offered;

9. The quality and continuity of the child’s education;

10.The fitness of the parents (a parent shall not be deemed unfit unless the parent’s conduct has a substantial adverse effect on the child);

11.  The geographical proximity of the parents’ homes;

12. The extent and quality of the time spent with the child prior to or subsequent to the separation;

13. The parent’s employment responsibilities; and

14. The age and number and of children.

The role that parents play in raising their children will depend on the custodial arrangement. The term “physical custody” refers to the residential arrangement between a parent and child (where the child physically resides). The term “legal custody refers to a parent’s legal authority to make decisions regarding a child’s health, education and welfare.  A court has authority to make any custodial arrangement it deems to be in the best interest of the child, including but not limited to these:

  • Awarding sole custody to one parent with appropriate parenting time to the other;
  • Awarding joint legal custody with sole physical custody to one parent and appropriate parenting time to the other;
  • Joint legal and joint physical custody with each parent having equal parenting time; or
  • Any combination of the above.

New Jersey Courts have shown a preference for custody arrangements that allow both parents full and genuine involvement in the lives of their children following a divorce. A landmark case on joint custody is Beck v. Beck 86 N.J. 480 (1981) rev’d 173 NJ Super 33 (App. Div. 1980).  Joint legal custody means that both parents have equal legal authority to make major decisions respecting their children’s health education and welfare.  Major decisions can only be made with notice to and consent of each parent. In the event of an emergency, one parent can make a major decision if taking time to notice the other parent would be detrimental for the child.  However, the parent making the decision must advise the other parent of the circumstances as soon as practical.

Joint legal and joint physical custody must be distinguished from “alternating custody” and “split custody.” Alternating custody is an arrangement by which both parents alternate physical and legal custody of their children. Split custody arises in the case of two or more children and each parent is awarded sole custody of one or more of the children. See Beck.

Although joint legal custody is favored under the law and almost always granted, it may not always be in the best interests of a child.  The primary criteria for establishing a joint legal custodial relationship between divorced or separated parents “centers on the ability of those parents to agree, communicate and cooperate in matters relating to the health, safety and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other.  The ability of parents to put aside their personal differences and work together for the best interests of their child is the true measure of a healthy parent-child relationship.”  See Nufrio v. Nufrio, 341 N.J. Super. 548 (App. Div. 2001).

All too frequently, conflict between parents arises after custody has been awarded.  The non-custodial parent (sometimes referred to as the parent of alternate residence) disagrees with decisions being made by the custodial parent (often referred to as the parent of primary residence).  A court cannot and will not micromanage every aspect of a child’s life. Generally speaking, the custodial parent or the parent of primary residence is the preferred parent relative to the day-to-day decision making of the children.  When more significant problems arise, the court will usually require that the non-custodial parent be consulted.  In a typical case, the court will intervene when joint custodial parents cannot agree on matters of health, education or general welfare of a child.  It is in the best interests of all children that parents keep conflict to minimum.

Given the complexities of Child Custody issues and Divorce in New Jersey, we advise you to contact one of our experienced New Jersey divorce lawyers or family law attorneys at 973-627-7300 at Einhorn Harris today. We handle child custody and divorce issues throughout New Jersey.