This is a complete guide to child custody in New Jersey. We’ll cover:
- The types of child custody
- How custody is determined in New Jersey
- The factors a court considers when making custody and visitation decisions
- Parenting plans
- Modifying custody orders
- And get answers to more New Jersey custody FAQs
What are the Types of Child Custody in New Jersey?
New Jersey’s public policy is that children have frequent and continuing contact with both parents. Based on this and the best interest of the child standard, a judge may order any of the following types of custody options:
Joint Legal Custody
This means both parents make major decisions regarding the child’s health, education, and general welfare. It is different from day-to-day decisions, which are generally up to whichever parent the child is physically with at the time.
Sometimes parents agree to share legal custody over some matters but not others. For example, they might decide that only one parent will be involved in major educational decisions, but both will participate in all other significant decisions.
Joint legal custody is very common in New Jersey, even when the child primarily resides with one parent. It is the preferred outcome of custody cases.
Further, if the other parent is incarcerated or incapable of making decisions for your child, then the court is unlikely to award joint legal custody.
Joint Physical Custody
This is when the child lives with each parent for a period of time, but it doesn’t necessarily mean that each parent has equal time.
A parent who provides a residence for the children for more than 50% of overnights per year or, if sharing is equal, provides the home for them while they’re attending school is referred to under New Jersey law as the Parent of Primary Residence (PPR). The other parent is the Parent of Alternate Residence (PAR). These designations are critical because they can affect child support calculations.
If parents are at odds regarding who should have primary physical custody, then the court will have to decide. The court looks at various factors when making this decision, such as which parent lives in the child’s school district, which parent has been the child’s primary caretaker and other related factors.
Sole Legal Custody
Sole legal custody is uncommon and is most likely awarded in situations where a judge makes a finding that one parent is unavailable or unfit. This is when only one parent makes major decisions for the child. A parent with sole legal custody can make major decisions affecting a child without consulting the other parent.
Sole Physical Custody
This is when the child primarily lives with one parent. Sole physical custody means that a child lives with one parent most of the time and spends less than two overnights per week with the other parent (non-custodial parent).
Sole physical custody usually results in “visitation” rights, which is the ability of non-custodial parents to spend time with their children. New Jersey courts prefer “parenting time” to emphasize that a non-custodial parent has a critical parenting role beyond just visiting with a child.
The other parent will likely still have scheduled parenting time unless visitation would not be in the child’s best interests. (i.e., domestic violence, abuse, or neglect)
Read More: Divorce Laws in New Jersey
How is Child Custody Determined in New Jersey?
To start a custody case, you must file an application with the family division in the county where the child lives.
If the child lives out of New Jersey, generally, the court where the child now lives would have jurisdiction, and you would file there. Determining appropriate jurisdiction is the first step.
Courts prefer parents to work out custody issues on their own, but often, this isn’t possible. When that happens, the court will set a trial, hear evidence and decide custody issues based on what is best for the child.
The role of mediation
Mediation is a collaborative process by which parents attempt to reach an agreement relating to custody and visitation of their child. With the help of a trained professional, parents try to compromise with terms agreeable to both parties. However, the mediator cannot force you to agree to something you don’t want.
What is the Parent’s Education Program?
When you file for divorce in New Jersey, and there are custody and visitation issues related to your child, a judge may make you attend the “Parent’s Education Program.”
This program addresses issues about how separation or divorce will affect you and your child and encourages you to work together to raise your child.
The role of court investigators and GALs
The court can also order the Family Division to investigate child custody issues. This custody inquiry will look at:
- the parents’ character and fitness
- the economic condition of the family
- the parents’ homes (limited to a factual description of the home where the child will reside or visit)
- the existence of appropriate child safety precautions in the home
- the number of household members and their relationship to the child
- criminal record checks for both parents.
If the court determines a child needs someone to represent their interests, it can appoint a guardian ad litem (GAL). This attorney will interview the children, parents, and other people with pertinent information. The GAL can gather evidence and obtain relevant documentation. The GAL will submit a report to the court with findings and recommendations.
What constitutes an unfit parent in a custody case?
New Jersey custody laws state that the court may deem a parent to be “unfit” if they:
- Have a history of drug or alcohol abuse
- Have a history of domestic violence
- Have demonstrated no interest in caring for or supporting the child’s well-being
How do I get custody of my unborn child?
The court will not address custody of your child until they are born. However, you can use the time before your child is born to discuss with your child’s other parent the kinds of custody arrangement or parenting time plan that will most benefit your son or daughter.
How do I get emergency custody of a child?
If a child is in danger or may suffer harm, file an emergency application called an Order to Show Cause in the county where the child resides. A judge will see you the same day, and you must prove the child will suffer immediate and irreparable harm.
If the judge agrees and a temporary order is granted, you will have to return to the court, usually within ten days, for a more expanded hearing. If the judge disagrees with you, your application will turn into an ordinary complaint for custody, and you will return to the court for a decision within four weeks.
Do grandparents have custody and visitation rights?
Third parties have rights in limited circumstances.
Grandparents or other family members have the burden of proof that visitation is in the child’s best interests. They must present evidence that visitation is necessary to avoid harm to the child, such as due to gross misconduct, neglect, unfit parent, or other exceptional circumstances. The court must also consider factors such as the relationship between the child and grandparent and the biological parents’ desires.
However, in New Jersey, courts strongly prefer the parent if there is a custody fight between a parent and a non-parent.
Factors a New Jersey Judge Must Use to Decide Custody
New Jersey courts make all child custody decisions based on the child’s best interests. Because each case is different, that “best interest” standard can vary from case to case. New Jersey lawmakers have established a series of factors to guide courts to assist judges in reaching the best possible decision. Some of these factors are:
- Parents’ ability to agree, communicate, and cooperate in matters relating to the child
- Parents’ willingness to accept custody and any history of unwillingness to allow parenting time (not based on substantiated abuse)
- Interaction and relationship of the child with its parents and siblings
- History of domestic violence
- The safety of the child and the safety of either parent from physical abuse by the other parent
- The child’s preference, when the child has the intellectual capacity to make an intelligent decision
- The child’s needs
- Stability of the home environment offered by the parents
- Quality and continuity of the child’s education
- The parents’ fitness to exercise custody
- The geographical proximity of the parent’s homes
- The extent and quality of the time spent with the child before or after the separation
- Each parent’s employment responsibilities
- The age and number of the children
- Other relevant factors
What is a Child Custody Parenting Plan?
A parenting plan agreement is a mutually agreed plan that details when the child will be with each parent. If the parents can’t agree on a parenting plan, the court will order them to enter into mediation with a neutral third party.
Courts and mediators can use some or all of the following information to determine what will ultimately be best for the child:
- Communication and cooperation between the parents
- Previous attempts to block visitation or otherwise prevent the other parent from seeing a child
- Any history of domestic violence, child abuse, or drug/alcohol abuse
- The quality and continuity of the child’s education
- The stability of the relationship between the child, the parents, and any other family members in the household
- The extent and quality of time spent with the child before the divorce
- The parent’s employment and other responsibilities
Parenting plans also cover transportation, holiday and vacation issues, emergency decisions, communication with the child by each parent, and other specifics to ensure a smooth and functioning flow between parents.
Modifying a New Jersey Custody Order
You can modify a child custody order through a consent order or by filing a motion.
If parents agree on the changes that should be made, they can present this agreement to the court to modify the existing court order. The judge will review the deal, decide if it is in the child’s best interests, and then approve, deny, or further modify the agreement.
When parents disagree with the proposed change, the parent who wants to change the existing order can file a motion with the court to modify the order. The parent must be able to show a substantial change in circumstances.
Possible examples of a substantial change may include:
- A major relocation of one or both parents
- A child’s educational progress has been affected
- There is abuse in the family
- Remarriage of one of the parties or cohabitation with a romantic partner that affects the child
- A parent has refused to comply with the existing parenting time agreement
- A change in employment or work schedule
- The child gets older, and their needs change
- Alcohol or drug abuse that occurs in the presence of the child
Read More: New Jersey Divorce Guide
New Jersey Child Custody FAQs
Does New Jersey favor mothers over fathers in custody cases?
New Jersey child custody laws provide that both parents must be considered on equal footing when it comes to a custody determination. However, courts still give weight to the “tender years doctrine” and skew that factor in favor of mothers.
What are the rules about moving to another part of New Jersey or out of state?
The Parental Kidnapping Prevention Act is a federal law designed to protect custodians and their children from unilateral removal of the child or children to another state. By creating uniformity nationwide, the law allows the states to assist each other in these types of custody situations.
If a parent wants to move and has primary custody of a child, they must get approval from the other parent and show the court that the move is ultimately in the child’s best interests.
The court will still need to review and approve the request to ensure everything is in order.
If both parents share custody, does anyone pay child support?
Quite possibly, yes. Support is based on each parent’s gross income, and while shared custody may impact the amount, child support is paid in the vast majority of cases.
Read More: Alimony in New Jersey
Does the court consider what a child wants in a New Jersey custody case?
It depends. Some judges will consider the children’s desires depending on their age and credibility.
Generally, if the child is over 12, their wishes are given more weight. However, a judge will make the final custody decision based on what they believe to be in the child’s best interests, regardless of the child’s preference.
According to New Jersey family law, a child can only truly choose which parent to live with once they are emancipated or reach the age of majority at 18.
