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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:
- 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. (Note: Can we reword the latter part of this to make it clearer? The not substantiated abuse part?)
- The interaction and relationship of the child with his or her parents and siblings.
- The history of domestic violence, if any.
- The safety of the child and the safety of either parent from physical abuse by the other parent.
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child's education.
- The fitness of the parents.
- The geographical proximity of the parents' homes.
- The extent and quality of the time spent with the child prior to or subsequent to the separation.
- The parents' employment responsibilities.
- 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:
- Compensatory time with the children.
- 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.
- A change in transportation arrangements.
- Pick-up and return of the children in a public place.
- Counseling for the children or parents or any of them at the expense of the parent in violation of the order.
- Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.
- Participation by the parent in violation of the order in an approved community service program.
- Incarceration, with or without work release.
- Issuance of a warrant to be executed upon the further violation of the judgment or order.
- Any other appropriate equitable remedy.
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.