3 Child Custody Problems You Need to Know
In some cases, there is little disagreement over child custody, but in many divorces this is the most contentious issue. Naturally, both parents will think themselves well-equipped to care for a child; both parents will want to spend as much time as possible with their child, provide a nurturing home for that child, and make the major decisions in that child’s life.
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, and about what’s “fair” between them, child custody disputes – at least in the court’s eyes – aren’t about the parents at all, but about the children, the real victims in a divorce. As such, the court will not consider either parent’s best interests, or what’s “fair” between the parents. In this dispute, the only thing that matters is the child’s best interests.
Of course, you and your spouse know you child better than anyone else. In a trial, a judge will hear from three family law attorneys – yours, your spouse’s, and a court-appointed attorney for your child – and make a decision about your child’s best interests. This might be the best course of action if your spouse is an abuser, or otherwise not likely to cooperate in mediation. But if you and your spouse can work together in mediation, you will likely be able to come to the best arrangement for meeting your child’s needs.
New Jersey law recognizes two types of child custody: legal and physical. These are further divided into sole, joint legal, joint physical and split.
Legal Custody: A parent with legal custody will have a say in all major decisions of a child’s life – for example, healthcare and education. New Jersey courts prefer parents to share legal custody. In cases of abuse or serious disagreement between the parents, courts may assign legal custody to only one parent, or assign legal custody to both but specify certain “domains” over which one parent will have no say.
Physical Custody: This refers to where a child lives. Again, courts prefer parents to share physical custody in some way – it’s almost always in the child’s best interests to maintain a relationship with both parents – but an exactly even, 50/50 split is often hard to achieve. 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.
Sole Custody: 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.
Joint Legal and/or Physical Custody: Courts prefer to assign joint legal 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.
Split Custody: Split custody refers to a custodial arrangement where 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.
1. How Courts Determine Custody
New Jersey child custody statues 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.
- New Jersey courts determine who gets custody of the child based on 15 different factors.
2. Relocating with Your Child
Whether you can move with a child depends on where you want to move. If you are seeking to move to another state or far away from your current residence (and, more importantly, the non-custodial parent), you’re interfering with visitation rights. If you do not obtain permission from the non-custodial parent, you will have to file a “Relocation Application” with the court. There will be a trial. You will need to present evidence that the request is in “good faith” and that move will be in the child’s best interests. You will also need to propose a parenting time plan that preserves the child’s relationship with the other parent as well as possible under the circumstances.
- Relocating with a child depends on whether or not the relocation will adversely affect the other parent’s parenting time.
3. Grandparents’ Visitation Rights
The state of New Jersey recognizes the importance of the grandparent-grandchild relationship. The law tries to balance this relationship with the right of a parent to raise a child as he or she sees fit.
If a child’s parent preventing visits from that child’s grandparent, the grandparent can petition the Family Court for visitation time. The grandparent must prove a “special need for continued contact,” one that exceeds “an ordinary grandparent-child relationship and its unwanted termination.” New Jersey courts also require a grandparent to show that a specific harm will result if the parent continues to deny visitation. It is not enough to simply say that a child needs grandparents in his or her life; New Jersey family courts require a grandparent to specify how the grandchild will be harmed if visitation is denied.
This is a very tough standard, but a recent decision by the New Jersey Appellate Division may help ease the burden on grandparents. In D.G.G. v. B.B.G., the Appellate Division reaffirmed that “the death of a parent could create a ‘special need for continued contact’ between the child and the grandparents from the deceased parent’s side of the family.”
- The state of New Jersey recognizes the importance of the grandparent-grandchild relationship, and as a result tries to uphold this family value.
If you or a loved one is going through a child custody battle or would like to see your kids or grandkids more, please contact our experienced child custody attorneys at Salvaggio Law Group, to start rebuilding your relationship with your kids (or grandkids).
David F. Salvaggio, Esq. – Founder & Senior Attorney
Email: email@example.com | Phone: (973) 455-1220