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PHOTO PROVIDED BY NORRIS MCLAUGHLIN & MARCUS, P.A.

Navigating child custody is often the most stressful part of a divorce. Understanding the law when it comes to physical custody will ensure you make the best decisions for your family. Here’s what you should know:

Physical custody is just that: actual custody of the child. Normally, one parent has primary physical custody of the child (which means that parent has the child for a majority of the time), with the other parent having parenting time with the children (i.e. every other weekend). It’s becoming more common, however, for parents to share physical custody, meaning they divide time with the child relatively equally.

1. Understanding the Best Interests of the Child

2. According to New Jersey law, custody arrangements are fashioned in the “best interests of the child.”
Barring extreme circumstances, our legislature believes that it’s in the best interests of the child to maintain frequent contact with both parents. The level of contact that the child should maintain with each parent is dictated by the following factors under the law:

  1. The parents’ ability to agree, communicate and cooperate in matters relating to the child.
  2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse. (Note: Can we reword the latter part of this to make it clearer? The not substantiated abuse part?)
  3. The interaction and relationship of the child with his or her parents and siblings.
  4. The history of domestic violence, if any.
  5. The safety of the child and the safety of either parent from physical abuse by the other parent.
  6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
  7. The needs of the child.
  8. The stability of the home environment offered.
  9. The quality and continuity of the child’s education.
  10. The fitness of the parents.
  11. The geographical proximity of the parents’ homes.
  12. The extent and quality of the time spent with the child prior to or subsequent to the separation.
  13. The parents’ employment responsibilities.
  14. The age and number of the children.

3. High Conflict Custody Matters and the Use of Experts
What happens when parties simply cannot agree on custody or parenting time? Perhaps one party believes the other should not have any contact with the child at all. Maybe the husband believes he should have 50/50 custody, but the wife believes the husband should have only alternate weekends with the child. In these instances where the parties have dug in their heels and cannot reach a compromise, we may need to turn to expert testimony to render an opinion as to the child’s best interests. A court may appoint an expert, the parties may retain a joint expert, or each party can retain his or her own expert. The expert can be a physician, psychiatrist, psychologist or other mental health professional. The expert cannot be a professional who is already providing therapy to a member of the family at issue, according to NJ law.

4. Taking a Child out of New Jersey
During or after the parties’ divorce proceeding, the custodial parent may want to move outside of New Jersey. Common reasons include, but are not limited to, job opportunities, remarriage, and a lower cost of living. Without the express consent of the non-custodial parent, the custodial parent must get permission from the court before he or she relocates out of state with the child, according to NJ law. The ability of the parent to relocate depends on what’s in the best interest of the child pursuant to a recent Supreme Court case, Bisbing v. Bisbing.

5. According to another ruling, Schulze v. Morris, a parent seeking to move within the state of New Jersey with the child does not need to seek permission from the Court before moving. However, the relocation may constitute a change of circumstances warranting modification of the custodial and parenting time arrangement. The court will consider the factors set forth in Baures v. Lewis in determining whether a modification of the custodial and parenting time arrangement is warranted.

6. Enforcing a Custody or Parenting Time Order or Judgment
Like the enforcement of alimony or child support, if a party violates a custody or parenting time order, the non-violating party can file an application to enforce the order and hold the violating party “in violation of litigant’s rights.” For example, one party may refuse to bring the children to the “drop-off” site so the other party can exercise his or her parenting time. Conversely, one party may not show up for his or her parenting time at all, causing the custodial parent to incur costs to find child care for the children. The court rules provide for specific remedies for the violation of a custody or parenting time order under the law which include:

  1. Compensatory time with the children.
  2. Economic sanctions, including but not limited to, the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent.
  3. A change in transportation arrangements.
  4. Pick-up and return of the children in a public place.
  5. Counseling for the children or parents or any of them at the expense of the parent in violation of the order.
  6. Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.
  7. Participation by the parent in violation of the order in an approved community service program.
  8. Incarceration, with or without work release.
  9. Issuance of a warrant to be executed upon the further violation of the judgment or order.
  10. Any other appropriate equitable remedy.

Previously:
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. She was also a New Jersey Law Journal 2015 Attorney of the Year finalist.


Breaking Up Is Hard to Do: What You Need to Know About Legal 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.

PHOTO PROVIDED BY NORRIS MCLAUGHLIN & MARCUS, P.A.

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.

Previously:
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.