One of the most difficult aspects of the divorce process is addressing child custody. In the event that minor children are involved in the divorce, the law in New Jersey states that the court will do whatever is in the best interest of the child. This means that the court will do everything possible to lessen the emotional trauma that a child goes through when their parents become divorced.
Child Custody
It is the preference of the court that the parents come to terms on child custody as it makes it easier on everyone involved if a decision is made amongst the parties, rather than have a decision handed down by a court. However, sometimes this is not possible, especially when the divorce is based upon irreconcilable differences. If that is the case, the court will make a custody determination that is based upon the physical and emotional needs of the child as well as the child's wishes. The court may award one of three types of custody arrangements:
- Joint legal custody to both parents, where one parent is responsible for residential custody;
- Joint physical custody, where both parents provide homes for the child; or
- Sole custody to one parent with visitation
Joint Custody
Joint custody may refer to the legal custody of a child (the decision making regarding the child's everyday life) or to the physical custody of a child. Often it means that the child will reside with one parent primarily but spend time with the other parent frequently or alternatively reside with the other parent.
Sole Custody
Sole custody refers to one parent having either sole legal or sole physical custody or both. Here, the sole custodian has the decision-making power and also has physical custody of the child. The non-custodial parent would have appropriate parenting time depending on the case.
How Is Custody Determined?
The custody determination is based entirely on the best interests of the children. Some examples of the factors the court considers are:
- The parties ability to communicate and cooperate in matters pertaining to the child;
- The interaction of the child with its parents and siblings;
- The quality and continuity of the child's education; and
- Any history of domestic violence
It is possible that a child could choose which parent they want to live with but it is dependent upon the fact finder. Some judges will consider the desires of the children depending on their age and credibility. Though it is a consideration, it is not always determinable.
When parents cannot agree to a custody arrangement each party must submit a parenting plan to the court. The parenting plan is a proposal for the types of custody to be awarded, a schedule for parenting time and holidays, etc. The plan also includes important information about the parents and their employment. The plan should also state how the plan meets the needs of the child. A parent that is fighting for custody will want to show the court that they promote the child's best interests and that the environment in which the child would live in also promotes the child's best interests. In addition to a clear schedule of the time children are to be in the care of each parent, a parenting plan may also address a parent's participation in education, health care, religious upbringing, decision making and financial support.
It is possible that the court will offer a parenting plan for each party, however, it is almost always best if the parents work together to agree on the details of the plan. If the parents are unable to agree on a plan, a parent can then file a motion to meet with a Family Court mediator to develop a plan, or a parent can meet with a private mediator, counselor or attorney and they can help formulate a plan. Once the parenting plan has been developed, it should be submitted to the court and filed as an order.
In New Jersey, the law provides that both parents must be considered on equal terms when it comes to a custody determination. In other words, it is against the law for the court to favor a mother or father without taking various factors into account. There is one exception, however, and that is that if the child is in what are considered to be “the tender years” of their life, the court may weigh more favorably in the mother's direction if both parties are equally fit to parent. A child is thought to be in their “tender years” when they are younger than 13 years old.
If the battle for custody is contentious, a Guardian ad Litem is ordered if the court needs someone to represent the child's best interests separate and apart from the parents. The Guardian ad Litem will investigate into the fitness of both of the parents to help determine which parent fits the needs of the child the most. It is also possible that a custody evaluator may be used in cases that are unable to be resolved in mediation.
Violating A Custody Agreement/Order
Once a custody order is handed down by a court or a settlement is reached, it must be adhered to. In New Jersey, interference with custody is a crime of the second degree if the child is taken, detained, enticed or concealed: (I) outside the United States or (ii) for more than 24 hours. Otherwise, interference with custody is a crime of the third degree. A third degree crime may be punishable by a term of imprisonment of three to five years, or a fine of up to $15,000.00