Child Custody in New Jersey

Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany
Child Custody 101
A N I N T R O D U C T I O N T O N E W J E R S E Y C H I L D C U S T O D Y

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CHILD CUSTODY 101
DISCLAIMER
This presentation contains general information and does not constitute legal advice.
Be sure to direct specific questions about your own situation to an attorney.

CHILD CUSTODY 101
• The Best Interests of the Child Standard
• Legal Custody vs. Physical Custody
• New Jersey Court Procedures
• Modifying Custody Orders
• Enforcing Child Custody Orders
• Questions & Additional Help
Sections

THE BEST INTERESTS OF THE
CHILD STANDARD
CHILD CUSTODY 101: BEST INTERESTS OF THE CHILD

The Best Interests of the Child
Child custody orders are based on the
best interests of the children
as determined by all relevant factors.

The law is gender neutral and
parents have equal rights and
responsibilities
• Determining appropriate custody requires
consideration of all facts, and is gender neutral.
• No form of custody is given automatic preference,
but frequent and continuing contact with both
parents is presumed to be in the child’s best
interests.
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How do Courts Decide Custody?
Agreements Between
Parents
Court Orders

AGREEMENTS BETWEEN
PARENTS
• Courts prefer parents to make their own
agreements about how to share parental
responsibilities and parenting time.
• Parents can work together to develop a schedule
that fits the needs of everyone in the restructured
family.
• To be upheld in court, a parenting agreement
must comply with the “best interests of the child.”
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COURT ORDERS
• If parents cannot agree on a parenting plan that
meets the child’s best interests, the court will
order a plan.
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New Jersey Child Custody Statute
N.J.S.A. 9:2-4
• Whether the parents reach agreement or the court orders a
plan, the factors in the New Jersey child support statute must
be considered in determining the “best interests of the child.”
• The factors listed are not exclusive. Courts can consider all
relevant factors.

• any history of domestic violence,
• the safety of the child and either parent from
physical abuse by the other parent,
• the parent’s fitness,
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Statutory Factors:
SAFETY

• the interaction and relationship of the child with
parents and siblings,
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Statutory Factors:
EMOTIONAL NEEDS

• the extent and quality of the time spent with the
child prior to or subsequent to the separation,
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Statutory Factors:
THE STATUS QUO

• the child’s needs,
• the stability of the home environment offered,
• the quality and continuity of the child's education,
• the geographical proximity of the parents' homes,
• each parents' employment responsibilities, and
• the age and number of the children.
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Statutory Factors:
PRACTICAL CONCERNS

• the preference of a child who is of sufficient age
and capacity to reason so as to form an intelligent
decision.
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Statutory Factors:
PREFERENCE OF THE CHILD

• the parents' ability to agree, communicate and cooperate in matters relating to the child,
• the parents' willingness to accept custody and any history of unwillingness to allow parenting time not
based on substantiated abuse.
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Statutory Factors:
ABILITY TO CO-PARENT EFFECTIVELY

LEGAL CUSTODY VS. PHYSICAL
CUSTODY
CHILD CUSTODY 101: LEGAL VS. PHYSICAL COSTODY

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CHILD CUSTODY 101: LEGAL VS. PHYSICAL CUSTODY
Legal Custody
• Includes schooling, religious upbringing, and medical
treatment beyond routine or emergency care.
• Can be sole or joint, but joint legal custody is pretty much
the default in New Jersey unless one parent is absent or
abusive.
• Joint legal custody usually means parents make all decisions
together but in some cases, one parent will have authority
over certain aspects and the other will have authority over
other aspects.
Legal custody governs a parent’s
authority to participate in major
decisions regarding a child’s
health, education, and general
welfare.

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Physical Custody
• One parent can have sole physical custody or parents can
share custody.
• Sole physical custody usually allows for liberal visitation by
the noncustodial parent.
• Joint physical custody is considered “shared custody” when
it approaches equal time-sharing and there is also full
sharing of parenting responsibilities (highly significant in
move-away cases, as discussed later in this presentation).
Physical custody governs which
parent a child lives with.

COMMON CHILD CUSTODY ARRANGEMENTS
Joint Legal Custody: Shared decision-making with
one primary residential parent (most common)
Shared Legal and Physical Custody: Equal or nearly
equal parenting time with equal responsibilities (also
common, but requires above-average co-parenting
skills)
Sole Legal and Physical Custody (unusual unless one
parent is absent or abusive)
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• Parents share decision-making authority for children’s health, education and general welfare, while the
parent a child is with at any given time makes day-to-day decisions in the child’s best interests and
notifies the other parent as appropriate.
• The child usually resides with one parent the majority of the time while the other parent has a more
traditional visitation schedule.
• Even when the physical custody approaches 50/50, it will not be considered “shared physical and legal
custody” unless the parents also share parenting responsibilities equally.
Joint Legal Custody with a Parent
of Primary Residence

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• Generally refers to a parenting arrangement where children spend equal or nearly equal time with each parent
and parents share day-to-day parental responsibilities equally.
• This is less common than joint custody with a primary parent, as it requires a high degree of communication
and collaboration.
• Scheduling options include alternating weeks or splitting weeks—sometimes alternating one day and night of
each week to equalize the time.
• No bright line distinguishes true shared custody from joint legal custody with a primary parent, but the
distinction can be important when calculating child support, as well as in a move-away case.
Shared Legal and Physical Custody

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• The residential custodial parent is solely responsible for all major decisions regarding the child's health,
education, and welfare, as well as all day-to-day decisions.
• Some parents just agree to this, but it is commonly instituted after a judge has determined that one parent is
absent or unfit due to a history of child abuse or neglect, drug addiction, or a similar issue.
• In the majority of such cases the non-custodial parent will still have visitation with the child, but visitation may
be supervised or restricted to ensure the child’s safety.
Sole Legal and Physical Custody

WHAT IS “PARENTING TIME”?
In New Jersey, child visitation
is often called “parenting time.”
A parent is never just a visitor.

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• Courts may impose temporary safeguards, such as requiring a third party to supervise visitation until the
parent has satisfied certain requirements—completing a drug rehabilitation program, for example.
• In the most extreme situations, a parent may be prohibited from exercising visitation entirely.
• An award to one parent of sole custody is not the same thing as a termination of the other parent’s rights. The
other parent might still be obligated to pay child support.
• The parent also retains the right to return to court at a later time and request a modification of the custody
and visitation order.
Restrictions on Parenting Time

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• In cases of imminent risk of physical or psychological harm to a child due to parental abuse or abandonment,
New Jersey DCP&P may make a temporary out-of-home placement for a child’s safety.
• A temporary custody arrangement ordinarily becomes permanent only if parental rights are terminated
through a court process.
• DCP&P tries to provide parents with support and termination of rights is a last resort.
Losing Parental Rights

NEW JERSEY COURT
PROCEDURES IN CHILD
CUSTODY CASES
CHILD CUSTODY 101: NEW JERSEY COURT PROCEDURES

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Jurisdiction is based on a child’s residence in a state for at least
6 consecutive months. Once a state exercises jurisdiction, it
normally keeps sole jurisdiction even if the child moves away.
A state can have jurisdiction over an absent child who resided
in state within the past 6 months, if a parent or guardian
continues to live in the state. Frequent moves can complicate
jurisdiction issues.
Avoid allowing a child to live with the other parent out of the
state or country without custody orders. You could find yourself
bound by out-of-state custody orders.
THE COURT MUST
HAVE JURISDICTION

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Do you need immediate help from the court? You can file a
pendente lite motion for temporary relief at any time during
your case.
Temporary parenting orders may be necessary at the outset of
the case to protect the children and prevent one parent from
making unilateral decisions.
Temporary child custody orders are generally based on
maintaining the status quo that existed before commencement
of any legal action related to custody.
NEW JERSEY FAMILY
COURT TEMPORARY
MOTIONS

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• COURT-ORDERED PARENTING CLASSES
• PARENTS PROPOSE PARENTING SCHEDULES
• COURT-ORDERED MEDIATION FOR DISPUTES
THE COURT WILL
REQUIRE YOU TO TRY
TO SETTLE YOUR
PARENTING ISSUES

NEW JERSEY FAMILY COURT
The court sends most cases involving custody or
parenting time issues to court-mandated parenting
mediation.
Each parent proposes a parenting plan.
If parents cannot agree in mediation, the case is put
on a priority track.
PROCEDURES FOR PARENTING TIME DISPUTES
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Parenting plans become part of a court order.
At a minimum, a plan should:
• designate the child’s primary residence
• describe legal custody
• include a specific time-sharing schedule, and
• include provisions for dividing holidays, birthdays, and vacations.
New Jersey Parenting Plans
Things to Include

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• access to medical records, report cards, teachers, etc.,
• first rights of babysitting,
• responsibility for specific expenses and for sharing unanticipated expenses,
• responsibility for transportation of children and for transportation costs,
• designated parent to take off work if a child is sick,
• means of addressing potential schedule changes or modification of plan as children get older,
• agreement to attend mediation to resolve future conflicts, and
• any other agreements you wish to include.
Additional items to consider
including in a parenting plan:

What if you can’t resolve your
parenting issues through
negotiation or mediation?
The court may want an expert
opinion.

Custody Investigations & Evaluations
FAMILY DIVISION INVESTIGATIONS
• Parents can jointly hire a mental health expert to
conduct the investigation and prepare the report,
or
• Parents can each hire their own expert
• Child custody evaluators must be neutral and
follow uniform standards, regardless of who hires
them
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PRIVATE CUSTODY EVALUATIONS
• The judge can order a social investigation and “best
interests of the child” report
• May include home inspections
• May also include psychological, psychiatric,
parental functioning assessments or mental health
evaluations if necessary
• The judge can also interview the child in chambers

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• A licensed mental health professional with
training in child development and family systems
can review proposed parenting plans in light of
the best interests of the children.
• Choose someone with experience working with
parenting issues common to family reorganization
USING A NEUTRAL CHILD SPECIALIST

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• Mediation can reduce conflict and decrease the
stress on everyone in the family.
• Mediation is confidential and can keep your private
family matters out of the public record.
• Private mediation offers many additional potential
benefits, including increased control over both the
process and results.
• Private mediation can be instituted prior to filing a
court case.
PRIVATE CUSTODY MEDIATION
AN OUT-OF-COURT ALTERNATIVE

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• Watching parents argue is hard on children and often makes them feel pressured to choose sides, potentially
causing emotional turmoil.
• Mediation helps parents preserve or improve upon the cooperative relationship essential to co-parenting.
• Parents who reach agreements on parenting matters in mediation often learn valuable skills that can help them
resolve future disagreements.
• Even if serious parenting disagreements arise in the future, parents can often resolve them by returning to
mediation.
PRIVATE CUSTODY MEDIATION
A PROCESS THAT PROTECTS CHILDREN

POST JUDGMENT
MODIFICATIONS IN NEW
JERSEY CHILD CUSTODY
ORDERS
CHILD CUSTODY 101: POST-JUDGMENT MODIFICATIONS

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CHILD CUSTODY 101: POST-JUDGMENT MODIFICATIONS
Child custody orders can be modified until children are
emancipated (deemed to be independent).
All modifications require a substantial change in circumstances.
Court will expect parents to try to work things out through
negotiation or mediation before going to court.
POST JUDGMENT
MODIFICATIONS
What if things change after
final custody orders?

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POT ENT I AL T RI GGERI NG EV ENTS
• A decrease or increase in parenting time
• A change in the primary residential parent
• A change from sole custody to joint custody or
vice versa
Courts considering a request for a major change will
require proof that the change is necessary to further
the child’s best interests.
POST JUDGMENT MODIFICATIONS
WHAT IS A SUBSTANTIAL CHANGE?

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• A parent of a minor child born in New Jersey
cannot move out of state with the child without a
court order or agreement with the other parent.
• Under former law a parent wishing to move with
the children needed to show that the move
would benefit the child.
• Under current law a parent with sole or primary
custody can move if the parent has a “good faith”
reason for the move and the move will not be
harmful to the child.
MOVE AWAY CASES?

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WHAT AB OUT JOI NT CUSTODY?
• Joint legal custody is not sufficient to trigger a full review.
• If the parents have true “shared custody,” meaning an equal or nearly equal division of time along with an
equal division of parental responsibilities, then the move-away parent must demonstrate that it would be in
the child’s best interests for the court to change custody and designate the move-away parent as the primary
custodial parent.
• Only after that hurdle is crossed will the good faith and lack of harm standard be applicable.
MOVE AWAY CASES?

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WHAT I S A “GOOD FAI T H” REASON?
Essentially any reason that is genuine and not motivated by a desire to keep the child away from the other parent.
Examples of acceptable reasons:
• job offer,
• new spouse’s job offer,
• anticipated remarriage to a person who is pigeon-holed to a different state, and
• being closer to extended family members.
MOVE AWAY CASES?

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ACCEPTAB L E ALT ERNAT I V E PARENT I NG PL ANS:
• Child will typically be with non-custodial parent during school holidays such as winter and spring break and for
the majority of the summer break.
• Plan must specify a reasonable method of transportation for the child and allocate the costs of such
transportation appropriately between the parents.
• Plan must also specify additional methods of contact, such as unlimited telephone calls, e-mail or text
messaging, and SKYPE.
• Plan must actually work for the non-custodial parent.
MOVE AWAY CASES?

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OPPOSI NG A MOV E -AWAY:
• Demonstrate shared custody if it exists, or
• Demonstrate lack of good faith for the move or
harm to the child.
• In either case, focus on the closeness of your
relationship with your child and show how the
child would be adversely affected by your inability
to fulfill current roles at a distance.
MOVE AWAY CASES?

BAURES V. LEWIS
Assessing Good Faith and
Lack of Harm
• the reasons for the move,
• the reasons for the opposition to the move,
• any past interactions between the parents that
bear upon reasons for or against the move,
• whether the move will afford the child with
comparable health, educational and leisure
opportunities,
• any special needs or talents of a child requiring
accommodations, and whether such
accommodations exist in the new location,
• the availability of a satisfactory visitation and
communication arrangement that will allow a full
and continuous relationship between the child and
the non-custodial parent,
AND

BAURES V. LEWIS
Assessing Good Faith and
Lack of Harm
• the likelihood that the custodial parent will
continue to foster a relationship between the child
and the non-custodial parent,
• the effect of the move on extended family
relationships,
• the preferences of a child of sufficient age,
• whether the child is about to enter the senior year
of high school,
• whether the non-custodial parent has the ability to
relocate, and
• any other factor relevant to the best interests of
the child.

ENFORCING CHILD CUSTODY
ORDERS AND AGREEMENTS
IN NEW JERSEY
CHILD CUSTODY 101: ENFORCING CHILD CUSTODY

Enforcing Child Custody Orders
Parents have a legal duty to comply with court-
ordered parenting plans. This duty generally includes
encouraging a child to spend time with the other
parent. Parents must also refrain from making
negative comments about the other parent.
I N T E R F E R E N C E W I T H C U S T O D Y
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Interference with custody or visitation includes
subtle behavior like blocking telephone or email
contact, or consistently scheduling a child’s
appointments and activities during scheduled
visitation time.
Only in severe cases should you consider court
action. Usually the better approach is attempting to
work things out with the other parent.
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If your child’s other parent is consistently violating
custody and visitation orders, consider bringing both
a motion to enforce litigant’s rights and a motion
requesting a change in the parenting arrangements.
Interfering with court-ordered parenting time can be
a crime in New Jersey. A parent who conceals a child
from the other parent for the purpose of interfering
with custody or visitation may have to serve jail time.
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New Jersey Court Rule 5:3-7:
In cases involving failure to comply with parenting orders, New
Jersey family law judges can order whatever remedies are
justified under the circumstances.
Enforcing Child
Custody Orders
P E N A LT I E S F O R I N T E R F E R E N C E

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A court might order temporary or permanent changes in the
parenting plan, including some or all of the following:
• Compensatory parenting time for the parent who has lost
time,
• Changes in transportation arrangements for visitation,
• Changes in the children’s pick-up location, or
• A change in the primary residential parent.
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Enforcing Child
Custody Orders

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A court can also order the interfering parent to:
• pay the other parent’s attorney’s fees and court costs,
• attend parenting classes or counseling,
• pay for counseling for the children or for the other parent,
• pay any costs resulting from non-compliance with court
orders,
• participate in community service, or
• comply with a warrant for arrest.
Enforcing Child
Custody Orders

DEFENSES TO INTERFERENCE WITH CUSTODY
• Imminent danger to you or your child: Contact DCP&P (1 (855) INFO DCF.), the local police, or
the district attorney’s office in your child’s county of primary residence and reveal the child’s
location as soon as possible (and always within 24 hours).
• Domestic violence: Bring a custody action in an appropriate court as soon as reasonably
possible.
• Contact an attorney or DCP&P immediately to ensure that you are complying with the law.
• Non-receipt of timely child support payments is not a defense.

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Child Custody in New Jersey

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