Often in a divorce, the main area in dispute is custody and parenting time of a child. Litigants can spend months of their lives and thousands of dollars fighting over their child.
There are two different types of custody – legal custody and residential custody. With regard to legal custody, there is sole legal custody or joint legal custody. In most cases, parents share joint legal custody. This means that parents have equal say in making decisions regarding the child’s health, education, religion, safety and welfare. With regard to residential custody, generally one parent is designated the Parent of Primary Residence. The other is the Parent of Alternate Residence.
The Parent of Primary Residence is the parent with whom the child spends the greater number of overnights. The Parent of Alternate Residence will have parenting time based on a schedule that the parties either agree upon or is ordered by the Court.
Statistically speaking, 97%-98% of all divorce cases settle. Generally, it is not a matter of “if” a case will settle. The question is “when” a case will settle. Of the 2%-3% of cases that may go to trial, generally half of those cases settle during trial. Therefore, only a small number of cases are tried. If a case is tried, it may be because the parents cannot agree on how to share the time with their child. Or, it may be who should be the Parent of Primary Residence.
The parents are required to attend a Parent Education Workshop at the outset of every case where custody or parenting time is an issue. At the workshop, a Superior Court Judge speaks to the parents about the Court process. The Judge also discusses the effect divorce and divorce litigation have on children. Following the workshop, the parents (so long as a domestic violence restraining order is not in effect) are scheduled to participate in custody and parenting time mediation in an attempt to settle these issues.
Throughout the course of the divorce, parties will have the opportunity to settle the custody and parenting time issues of their case. If they do so through the mediation process or through their attorneys, there are certain areas that must be considered when addressing custody and parenting time in the divorce.
The details of a custody arrangement should be part of the Marital Settlement Agreement (“MSA”). The MSA is a written and binding agreement entered into between the parties. It addresses all issues arising out of the marriage, including:
Additionally, a significant issue may involve one parent’s desire to relocate from New Jersey with the child. Neither parent can permanently relocate from New Jersey without the other parent’s written consent or a Court Order. In the event this issue is relevant, the MSA should address any potential relocation; if it is acceptable, and if so, the framework for the relocation.
The issues of custody and parenting time can be difficult to resolve because parents are attempting to divide the time of their most precious gift – their child. Both parents want to be with their child 100% of the time. It is often very painful and difficult to tailor a schedule that is in the child’s best interest yet is also an acceptable compromise.
However, as divorce cases are likely to settle, the above considerations are important to address when custody and parenting time are in issue.
If you have questions about this post or any other family law matter, please contact me at firstname.lastname@example.org.
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