Learn 5 Important Tips on Child Custody During Divorce
One of the more difficult aspects of the end of a union is the matter of child custody during divorce. Though all couples must contend with such matters as the division of assets and alimony payments, those with children have to consider how the divorce will affect their relationships with their daughters and sons. Unlike assets and similar marital property, children cannot be equally divided among their parents, and they themselves have their own wishes and desires as well during divorce proceedings. Determining physical custody, the term for where and with whom a child lives, is rarely a cut-and-dried process. Complicating matters is the fact that children cannot travel on their own, and proximity to their schools, day camps, and friends is an important factor that parents must consider. Unless parents happen to live close to each other, an even physical custodial split is unlikely to result. If you feel uncertain about the potential outcome of your child custody battle, these five facts can help you to anticipate the challenges ahead as you and your spouse begin to negotiate physical child custody during divorce.
1.) When a 50/50 Split Cannot Be Reached, There Must Still Be a Compromise.
A divorce will disrupt a child’s life at every level. There will be nothing like an “ideal” child custody situation in a divorce—only compromises. Whereas all other disputes in a divorce are essentially between two people, child custody disputes are less about the parents and more about the children, the real victims in a divorce. In most cases there will be one “custodial parent” and one “non-custodial parent,” or a “parent of primary residence” and a “parent of alternate residence.” This decision affects child support: the non-custodial parent will always pay the custodial parent, though this can flip-flop: child support is the right of the child, not of the parent.
2.) Joint Physical and Legal Custody are Typically the Ideal Result.
Courts prefer to assign joint legal and physical custody. Under a joint legal custody arrangement, one parent serves as the child’s primary caretaker, but both parties participate in making the major decisions relating to the child. When parents have joint physical custody, they share primary caretaking responsibilities for the child, usually through a shared residential arrangement in which the child lives at each parent’s home for significant amounts of time.
3.) When Joint Custody Is Not Possible, Split or Even Sole Custody May Be Necessary.
Split custody refers to a custodial arrangement in which there are two or more children, and each parent is awarded sole custody of one or more (but not all) of the children. This might happen when only one child alleges abuse but the court has serious reason to doubt this, or if the court considers children old enough to have significant say over the custodial arrangement and different children elect to live primarily with different parents. When one parent has sole custody, that parent is entitled to make both the major decisions relating to the child (such as medical choices and education) and the minor day-to-day decisions regarding the child—without having to obtain the consent of the other parent.
4.) Disagreements over Child Custody During Divorce Will Be Settled in Court.
In a trial, a judge will hear from three attorneys—those belonging to each spouse and a court-appointed attorney for the child or children—and make a decision about the child’s best interests. This might be the best course of action if one spouse is an abuser or otherwise not likely to cooperate in mediation. A trial is only necessary if the parents cannot work together in mediation, but if the parents can collaborate, they will likely be able to come to the best arrangement for meeting their children’s needs.
5.) The Factors That a Court Considers Are Legion.
New Jersey child custody statutes identify 15 factors to consider in all custody decisions:
– The parents’ ability to agree, communicate, and cooperate in matters relating to the child.
– The parents’ willingness to accept custody.
– Any history of unwillingness to allow visitation not based upon substantiated abuse.
– The interactions and relationship of the child with its parents and siblings.
– Any history of domestic violence.
– The child’s safety and the safety of one parent from physical abuse by the other parent.
– The needs of the child.
– The age and number of children.
– The stability of the home environment offered.
– The quality and continuity of the child’s education.
– The fitness of the parents.
– The geographical proximity of the parents’ homes.
– The extent and quality of the time spent with child before and after the separation.
– The parents’ employment responsibilities.
– The child’s preference, if the child is old enough to make an intelligent decision.
Children are in a unique position in divorce proceedings; though they may appear to be a third party, they are directly affected by every step of the divorce process. Though spouses may have their own bones of contention with each other, these must be set aside if any amicable decision is to be made in the custody of their children. If you are considering a divorce or have just begun divorce proceedings, it is important to have a lawyer by your side throughout the process. Where issues of child custody and support are concerned, an attorney with experience in family law can be a true asset. If you have any questions about child custody during divorce, consult our office today for more information.
Check out our Guidebook to Divorce for immediate help on child custody problems during divorce.
Salvaggio Law Group LLC devotes its entire practice to family law matters, including those relating to child custody during divorce. If you want to talk, please call us at 973-459-4927 or fill out the Contact Form on our firm’s website.