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Ask the Expert: Breaking Up Is Hard to Do: What You Need to Know About Legal Custody

Navigating child custody during the divorce process can be stressful and overwhelming. As you make decisions, it’s important to fully understand the law when it comes to child custody.



Photo provided by Norris McLaughlin & Marcus, P.A.

Navigating child custody during the divorce process can be stressful and overwhelming. As you make decisions, it’s important to fully understand the law when it comes to child custody. There are two major components of child custody in New Jersey: physical and legal. In this post, we’ll break down everything you need to know about what it means to have legal custody of your kids.

Legal custody is the ability to make major decisions about your child’s health, education and general welfare. Except in extreme circumstances, most parties in New Jersey share legal custody, meaning they share the authority and responsibility to make major decisions about the welfare of the child.


A parent may be awarded sole legal custody when the other parent has been neglectful of the child or otherwise absent from the child’s life; or where the parents are unable to agree, communicate or cooperate in matters relating to the health, safety and welfare of their child, regardless of liberal time-sharing of the child. Even when the parties share joint legal custody, the parent of primary residence is still charged with making the routine day-to-day decisions on behalf of the child. There are several factors to be considered when ironing out a joint custodial arrangement. The factors include:

  1. Whether the children have established such relationships with both parents that they would benefit from joint custody;
  2. Whether both parents are fit, i.e., physically and psychologically capable of fulfilling the role of parent;
  3. Whether both parents exhibit a potential for cooperation in the best interests of the child;
  4. The financial status of the parents;
  5. The geographical proximity of their respective homes;
  6. Parental employment;
  7. The ages and number of children; and
  8. The preferences of the children, if they are of sufficient age and capacity to express meaningful preference.


Practitioners suggest and Courts order joint legal custody in a majority of cases, assuming it is in the best interests of the child, as well as the most fair to the parties. Joint legal custody is, without doubt, the most popular arrangement. But is it really the best arrangement in all of these cases? What happens when the parties have reached an impasse on a particular issue? When joint legal custody is awarded, there is an underlying assumption that the parties will be able to reach decisions on matters of importance to the child. Unfortunately, there are times that many parties cannot even agree on the most basic decisions, making the effectiveness of joint legal custody questionable.

The parent who has primary custody has the benefit of making medical decisions and decisions surrounding religious upbringing when the parties cannot agree.

While joint legal custody seems the most “fair” on its face, it is the unfortunate reality that such arrangements can wreak emotional havoc on a child, as the parties are forced to communicate with each other and reach decisions jointly (something that many parties were not even able to do during marriage, let alone after a divorce). It may actually be in the best interests of a child not to award joint legal custody in a high conflict divorce matter. Alternatively, it may be worth explaining to the non-custodial parent that, despite a joint legal custody arrangement, his or her decision-making abilities are not really equal to those of the custodial parent.

Coming next month: Find out what parents need to know before making decisions about legal custody.

Advice to the Prospective Divorce Client
10 Things the Client Should Never Say to Children 
Dispelling Divorce Law Myths


Jeralyn L. Lawrence, a Member of Norris McLaughlin & Marcus and Chair of its Matrimonial & Family Law Group, devotes her practice to matrimonial, divorce, and family law. Lawrence is Secretary of the New Jersey State Bar Association and a former Chair of its Family Law Section.  She is also Treasurer of the American Academy of Matrimonial Lawyers, NJ Chapter. She has been widely recognized for her contributions to her profession and she is a three-time recipient of the New Jersey State Bar Association Distinguished Legislative Service Award, the highest recognition of a member's noteworthy legislative service. She has also been named as one of New Jersey's Top 50 Women in Business by NJBIZ and was recognized by her peers as one of the Ten Under Forty, New Jersey's top 10 matrimonial lawyers under the age of 40; and New Jersey Law Journal's 40 Under 40, 40 accomplished and promising attorneys in the State of New Jersey under the age of 40.

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