Custody and Parenting Time

Custody

Navigating child custody in New Jersey is often the most stressful part of a divorce. Our lawyers help you understand the law when it comes to physical custody and will ensure you make the best decisions for your family. Physical custody is just that: actual custody of the child. Traditionally, 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 so long as that schedule is in the child’s best interests. We work with our clients to determine what is best for the children and to minimize conflict during this taxing process.

Parenting Time

Separation and divorce can impact your relationship with your children. The quantity and quality of time your children spend with each parent is important for a healthy post-separation and post-divorce relationship. Our lawyers work with clients to ensure their children are protected and their best interests are met.

We design a specific parenting plan that defines a clear schedule of the time children are to be in the care of each parent. The plan also addresses a parent’s right to participate in decisions relating to education, healthcare, religious upbringing, and financial support. At Lawrence Law, we strongly urge our clients to compromise, communicate, and cooperate as it pertains to issues relative to their children, and we are prepared to seek court intervention when the other party does not adhere to these protocols.

Frequently Asked New Jersey Custody & Parenting Time Questions

What are the different types of custody in New Jersey?

There are two types of custody in New Jersey: legal custody and physical custody. Legal custody refers to a parent’s authority to make significant decisions about a child’s life, including but not limited to decisions related to the child’s health, education, safety, welfare and religion. Physical custody refers to whether the child is physically residing with a parent. Various physical custody arrangements exist wherein one parent is considered the parent of primary residence because the child spends more than 50% of their time with that parent, leaving the other parent designated as the parent of alternate residence because the child spend less than 50% of their time with that parent. Other times, parents can enjoy a shared physical custody arrangement wherein the child spend 50% of their time with each parent.

What are the factors that the court considers during a custody case?

The custody statute in New Jersey sets forth the following factors to be considered by a court when determining a custody and parenting time arrangement that is in the best interests of the child: 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;  the interaction and relationship of the child with its 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;  and the age and number of the children.

Do New Jersey courts assess the fitness of parents?

There are various evaluations a court could require a parent to undergo when determining a custody and parenting time arrangement of a child. For example, if parents are unable to agree as to what custody and parenting time arrangement is in the child’s best interests, a court could require a custody evaluation which will include a psychological evaluation of a parent. In other circumstances where there are concerns about a parent’s alcohol or drug abuse, a parent may be required to undergo an alcohol and substance abuse evaluation and/or risk assessment. Other circumstance may require a parent to undergo a psychological or psychiatric evaluation.

Do the children’s wishes affect custody?

Yes, but only if the child is old enough in age and maturity.  More specifically, under New Jersey’s custody statute, one of the factors a court must consider when determining a custody and parenting time arrangement that is in the best interests of a child is “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” The law does not provide for a specific age of the child and is dependent on the specific facts of a case and needs of a child.

How does a person apply for custody in New Jersey?

A person can apply for custody of their child by filing a formal application with a court. If the parents of a child are unmarried, then a parent will need to file a Verified Complaint with the Superior Court of New Jersey under the FD docket seeking to establish legal and physical custody of the child and a parenting time schedule, if applicable. If the parents of a child are married and going through a divorce, then a parent will need to file a Notice of Motion with the Superior Court of New Jersey under the FM docket seeking to establish legal and physical custody of the child and parenting time schedule, if applicable. In either situation, the parent filing the application must provide notice to the other parent at the same time they file the application with the Court.

Can a custody arrangement be modified?

Once a custody arrangement is established, it can only be modified if a parent makes a formal application to a court and is able to show that circumstances have substantially changed from the prior custody arrangement and that the best interests of the child require the custody arrangement be modified. Alternatively, a child’s parents can agree at any time to modify a custody arrangement without having to make a formal application to a court.

What type of parenting time schedules are available in New Jersey?

Parenting time schedules can be crafted in numerous different ways depending on what a court or the parents consider to be in the best interests of a child. In some cases, a parenting time schedule may allow a parent to have alternate weekend parenting time with the child, while the other parent is the primary physical custodian of the child. In other instances, the same parent who enjoys alternate weekend parenting time may also enjoy weekday evening parenting time one or two times a week. Other schedules may allow for parents to enjoy joint physical custody with one parent having 7 consecutive days and alternating every 7 days with the other parent. Parties are encouraged to be flexible and creative when creating parenting time schedules that will allow equal access to both parents but is also in the best interests of the child.

Can a parent’s parenting time rights be terminated completely?

While it is uncommon and not very likely in New Jersey, there are circumstances wherein a parent’s rights to a child can be terminated. This can happen either voluntarily or involuntarily. Under New Jersey law, a parent’s rights may be involuntarily terminated if 1) a conviction has been entered against a parent for abuse, abandonment, neglect or cruelty against the child, 2) the best interests of the child require that (s)he be placed under guardianship, 3) a parent has failed to remove circumstances that are considered harmful to the child for a period of one (1) year or more, 4) a parent has abandoned the child, or 5) a parent has been found guilty of a crime involving the safety and well-being of the child, that child’s other parent, or another child of that parent.

What is supervised parenting time?

Supervised parenting time is implemented by a court when “there has been a history of child abuse, medical disabilities, psychiatric problems or other situations where the safety and welfare of the child may be jeopardized.” Supervised parenting time includes the presence of a third-party to “supervise” a parent’s parenting time. This third-party may be an individual specifically trained and appointed by the court to act as a supervisor. In other instances, the individual may be a third-party, sometimes a family member, agreed upon by the parents.

What happens is the child does not want to have parenting time with a parent?

The issue of whether a child will be required to have parenting time with a parent despite not wanting to see them will be governed by what a court believes to be in a child’s best interests. Under New Jersey’s custody statute, a court will only consider the preference of a child if that child is of sufficient age and maturity. Because there is no specific age called for in the statute, there are circumstances in which a child will be required to have parenting time despite not wanting to see the parent.

What can be done if a party fails to comply with the parenting time schedule?

The New Jersey Court Rules provide various remedies to a party if another party fails to comply with a parenting time order. A formal application must be filed to seek such remedies 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) modification of 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; and (10) any other appropriate equitable remedy.

What happens if former spouses fight during the pickup and drop-off of the children?

If parents of a child continue to fight during pick-up and drop-off of children, they can arrange to have pick-up and drop-off take place curbside such that neither parent is permitted to come onto the other parent’s property during this exchange. Alternatively, parents can arrange to have pick-up and drop-off take place at a neutral site, at the children’s school, or even at a police station. In other instances, parents may agree to utilize a third party for the purposes of pick-up and drop-off or have pick-up and drop-off take place at an agreed upon thirty-party’s residence.

Do grandparents have visitation rights?

In limited circumstances, grandparents may have visitation rights. Under New Jersey law, a grandparent must prove to a court that visitation is required in order to avoid harm to the child. If a grandparent can meet that burden of proof, then a court will consider the statutory factors to determine a visitation schedule that is in the best interest of the child.

Does a stepparent have a right to have visitation with their stepchildren?

New Jersey’s custody statute requires that a court determine a custody and parenting time arrangement that is in the best interests of a child. Traditionally, a stepparent would not have a statutory right to visitation with stepchildren. However, in the limited circumstance where a court finds that the relationship between the child and stepparent is like that of an actual parent and it would be in the best interest of the child to maintain that relationship, then a stepparent could have a right to visitation.

Can a custodial parent move out of the State of New Jersey with the child?

Any parent who shares joint legal custody of a child with another parent either requires the consent of the other parent with whom they share legal custody or obtain an Order from the court to relocate to another state. The court will determine whether such a move out of New Jersey is in the child’s best interest.

Can a parent’s new spouse adopt her child?

Except in very limited circumstances, only the child’s biological parents have custodial rights to a child. While both biological parents are living, a new spouse can adopt a child only if a biological parent’s rights are terminated, whether voluntarily or involuntarily. If one parent has died, then a new spouse can seek to adopt the child.

How is custody determined in a case where the parties are not married?

If two parents of a child are not married, then a parent seeking custody of the child will need to file a formal application with the Superior Court of New Jersey under the FD docket. A determination of custody of a child is the same whether two parents are married or unmarried. A court must consider a number of factors when determining a custody and parenting time arrangement that would be in the child’s best interests.

Can parenting time be modified if ex-spouse is now living with another person?

Yes. A court can impose restraints on a parent’s parenting time such that a new companion cannot spend the night where the children are located. However, such restraints are not often granted and are imposed in limited circumstances taking into account various factors, including but not limited to the age of the child, the length of time the child’s parents have been separated, the length of the new dating relationship and whether the child knows the new person, and any emotional or psychological condition of the child that may be impacted by exposure to the new companion.

What happens if a parent kidnaps a child?

If a parent withholds a child from another parent by removing them from New Jersey, then the parent remaining in New Jersey should file an emergency application in the State of New Jersey seeking an Order requiring the return of the child to New Jersey, as well as report such kidnapping to the state and local authorities. Once a New Jersey Order is obtained, you will need to make an application in the state where the child is located to have the New Jersey Order registered and enforced. Simultaneous with these Orders, the state and local authorities will be conducting their own investigation and work toward assisting you in returning the child to New Jersey.

What happens if there is a custody dispute that involves different countries?

If there is a custody dispute involving different countries, a determination will need to be made as to which country’s law will apply when determining custody of the child. The first step in such a determination is to establish whether the two (2) countries in conflict are parties to the Hague Convention. If they are parties to the Hague Convention, then a proceeding will need to be instituted in the country to which the child was removed so that a court can determine the “habitual residence” of the child and have the child immediately returned to their “habitual residence” for a final determination on custody.  If the country to which the child was removed is not a party to the Hague Convention, the parent who has had the child wrongfully removed from them will need to seek the appropriate civil and criminal remedies available to them within that country to make a determination on custody.

What if a spouse has consent from the other spouse to move to another country, is it still possible for one spouse to compel the other to move back to the United States?

If a spouse consented to another spouses’ removal of a child to another country, the only means by which the consenting spouse could then compel the other spouse to return to the United States would be if there was a substantial change in circumstance and it would be in the best interests of the child to return to the United States.

What if there is a custody order from another state other than New Jersey?

If there is court order from another state regarding custody, that court order will continue to control custody of the child as long as the other state has continuing jurisdiction of the child. If another state has jurisdiction of the child, New Jersey will not modify the court order of another state. New Jersey will exercise jurisdiction over the child and modify the other state’s custody order only if the child has resided within New Jersey for six months prior to the commencement of the action or the child has resided in New Jersey for six months prior to the commencement of the action, is no longer in New Jersey at the commencement of the action, but a parent of the child continues to reside in New Jersey. New Jersey may also exercise jurisdiction to modify another state’s order if the home state of the child declines to exercise jurisdiction and believes New Jersey to be the appropriate forum for the case, as well as the child and/or a parent reside in or have significant connections to New Jersey.

What is a Guardian Ad Litem, and when is one appointed?

When circumstances require in custody and parenting time disputes, a guardian ad litem may be appointed by a court to act on behalf of a child. In custody cases, the purpose of a guardian ad litem is to represent the best interests of the child. The services rendered by the guardian ad litem are to the court on behalf of the child and include allowing the guardian ad litem to act as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child.

What is the UCCJEA?

UCCJEA stands for the Uniform Child Custody Jurisdiction and Enforecment Act. The Act was created to avoid duplicate litigation in two different states and conflicting decisions between courts of different states. Under the Act, only one state at a time is permitted to exercise jurisdiction over the custody and parenting time of a child.  For example, if litigation is pending in another state relative to the custody and parenting time of a child, then New Jersey may not exercise jurisdiction. Similarly, if litigation is pending in New Jersey relative to the custody and parenting time of a child, then another state may not exercise jurisdiction.

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