Typically there are three (3) types of custody “contests” that begin child custody proceedings:
- Parent vs. Parent:
Married: Parents who were once married and are now seeking a divorce or legal separation along with a custody proceeding.
Unmarried: Parents who were never married and are going through child paternity proceedings.
- Parent vs. State: The fitness of the parents to raise their children is at issue where the state is terminating parental rights over the child.
- Parent vs. Third Parties: The child’s best interests and parents ability to provide and cater to the child’s interest is being questioned and challenged by another person not a parent to the child. The Parent’s fitness to raise the child must be challenged for a third party to seek custody.
Custody of a child is defined by different categories: Legal, Physical, Sole and Joint; none of which has preference in New Jersey.
Legal Custody - Legal custody of a child is a parent having the decision-making power for the child; decisions consisting of school, medical needs, and general upbringing.
Physical Custody - Physical Custody or Residential Custody is where and with whom the child is going to spend the majority of their time; where and who the child lives with.
Sole Custody - Sole Custody is one parent having both legal and physical custody of the child, and the noncustodial parent is allotted appropriate parenting time. The parent with sole custody of the child, absent consent, court order or judgment, has no obligation to discuss or accommodate wishes of the other parent when making decisions for the child. The other parent has does not have parental authority in decision-making and must make an application to the court to assist.
Joint Custody - Joint Custody is where both parents are remaining equally active in the decision-making and life of the child. The court looks at if the child’s best interest will be served best by both parents sharing parental authority in both legal and physical custody. Court looks at the parents’ ability to communicate with each other. However, the court has left undisturbed joint custody arrangements where there is a lack of communication and parents are still willing to continue the joint arrangement.
Joint Legal - Parents in this situation share in the decision-making of the child and they both control the upbringing of the child, however the child still only has one primary place of residence with whoever has physical custody. When parents share in the decision-making of the child they must consult and confer with one another prior to making any “non-typical” decisions concerning the child’s health, education and welfare. Ideally parents who share in Joint Legal Custody make decisions by a double filter process: making a decision and having to pass through the other parent as a filter before a decision is ultimately made.
Shared Physical: Parents in this situation share physical custody of the child. The child essentially has two (2) residences and is spending at least 35% of his/her time with the other parent.
Mix Combination: Parents planning and developing own combination and agreement of sharing legal and physical custody of the child.
Child Custody: Procedural Process for obtaining Child Custody
Motion: First, a motion must be filed with the Superior Court Clerk in the county where child is located. The courthouse has a selection of standard forms available.
Three (3) Types of Custody / options to file:
1. Legal Custody
2. Physical or Residential Custody
3. Both legal and physical custody can be sought and needs to be specified in the Motion.
Standard: Best Interest of the Child: The party seeking custody in New Jersey must demonstrate that the child’s best interest is served by approving and enforcing the custody arrangement proposed in the motion filed. The court weighs and balances relevant considerations, such as historical primary care of child, and overall physical and mental health of the parties.
Child Custody Third-Person Action: Parents or Custodian of child unfit
Any person interested in the welfare of a child may institute an action in court when the parents or other person having actual care and custody of the child are found not to be fit to be entrusted with the child’s care and education, or neglects to provide the child with proper protection, maintenance and education, or to endanger the welfare of the child, or make the child dependent on the state. Any person may also institute an action when if child’s parents are dead, and there is no legal guardian or agency that has custody of the child.
Child Custody: Factors considered in Child Custody Determination
Custody decisions must be based on all circumstances that is relevant to the child’s best interest. There is no defining law that specifically defines a threshold of what a child’s best interest is, therefore custody determinations are decided case by case. Thus, the Court analyzes, weighs, and considers the following factors when determining child custody.
Factors:
- Ability of parents’ to agree, communicate and cooperate in matters relating to the child;
- Willingness of parents’ to accept custody and any history of unwillingness to allow visitation not based on substantiated abuse;
- The interaction and relationship of the child with its parents & siblings;
- Any history of domestic violence;
- The safety of the child and safety of either parent from physical abuse by the other parent;
- The preference of the child when of sufficient age and capacity to reason as to form an intelligent decision;
- The needs of the child (and who is able to meet the needs);
- The stability of the home environment offered;
- Quality and continuity of the child’s education;
- Fitness of the parents;
- Geographical proximity of the parents’ homes;
- Extent and quality of the time spent with the child prior to or after the separation;
- Both parents’ employment and responsibilities;
- The age and number of children;
- Parent’s dependency on the state if receiving governmental benefits.
For example:
Ethnic Heritage or Race? : Parent arguing harm of different race won’t be sufficient and won’t be tolerated by most courts as a factor against any parent’s interest. However, upbringing of child in the child’s culture and heritage may be considered by the courts.
Sexual Orientation: Parent arguing sexual orientation being detrimental to the child may be considered by the court. However, absent evidence of detriment to the child’s well-being and harmful effects on the child, the factor is not weighted heavier than other factors that may be listed.
Child’s Decision
The preference of the child may be a factor to consider when the child is of sufficient age and capacity to reason as to form an intelligent decision. This is a case by case analysis for each court to consider with other facts and circumstances brought before it. The court will look into the reasons for the child’s preference, the child’s maturity, and the child’s intelligence level. The court considers any additional evidence that support/oppose any preference the child voices to the court.
Judicial Interview of Children: There is no set age for a child to testify in court. The court only sees if the child is mature and can answer questions by reporting facts, express their feelings and beliefs. The court may seek to question on its own, or by request of one of the parties. Parties who request children of age seven (7) and older must be interviewed, however children under the age of seven (7) will be considered by the court but may or may not be interviewed. The proceedings are not open to the public and it is the Judge who asks the questions. Furthermore, the Judge is careful about asking questions with who the child would rather live with.
Child Custody: Determination and Visitation Rights
“Initial determination” is defined as the first custody determination concerning a particular child. The Court upon weighing the factors towards the best interest of the child will make an initial determination, whether it is sole custody or a variation of joint custody. However, courts prefer not the make custody determinations if reasonable provisions in the child’s best interests are able to be made by the parents or custodians of the child. By statute, voluntary custody arrangements will be enforced as long as the arrangements represent the best interest of the child. In both situations, by court determination or voluntary arrangements, Parenting Plans are developed.
Determination
Parenting Plans: A parenting plan is a clear schedule of dividing the time of the child between each parent. The plan may address issues of education, health care, religion, and other decision-making situations including piercings and tattoos. The whole plan is based on time-sharing with the child and should be made to fit both parents’ schedules realistically to avoid conflicts and provide consistent stability within the child’s life.
Visitation Rights:
There is a public policy to assure that minor children have continuous and frequent contact with both parents after divorce and separation. The Court will treat the rights of both parents equally.
Parent awarded sole custody of the child do not take away visitation rights of the other parent. Absent the other parent’s rights being terminated by the state, the other parent has visitation rights. Even in cases of harm resulting from weighing the above best interest factors, the other parent still has visitation rights, although it may be supervised visits ordered by the state.
Enforcement and Noncompliance of Child Custody in New Jersey
Enforcement
New Jersey Statute: N.J.S.A. 2A: 34-58 – Effect of Custody Determination Statute states that a child custody determination made by a court of New Jersey binds all persons who have been served, or given notice of the child proceeding and who had been given opportunities to be heard in court. To these people/parties in the child proceeding, the determination is
Noncompliance
Noncompliance with a court order is covered by New Jersey Statute N.J.S.A. 2C:29-9, contempt of court, which is a fourth degree crime and which may be punishable by a term of up to eighteen months in county jail and a fine of up to $10,000.00.
Child Custody: Modification in New Jersey
Modification is any decision made after the initial child custody determination that changes, replaces, or supersedes. To modify child custody determinations the following must occur:
1) The modifying parent must show there has been a substantial change in circumstances since the entry of the original custody, and if so;
2) The court must decide whether the changed circumstances require in the best interest of the child for the custody to be modified.
The material change in circumstances must have a showing that the custodial parent is unfit or that in the child’s best interest modification is needed. The burden of proof is first on the parent seeking modification. When the court finds sufficient evidence to proceed, the custodial parent then has the burden to prove the initial child custody determination is in the best interest of the child. Custodial parent is allowed to present evidence from prior proceeding to establish the foundation of the initial determination to counter the modifying parent. The court will once again conduct an analysis by using the best interest of the child factors that was used in initial child custody proceedings. The court will analyze modifications stringently as to not continuously change the custody of child over and over. The best interest of the child having stability, continuity and consistency will guide the court’s determination.
Child Custody: Relocation in New Jersey
When applying for relocation the relocator parent must show
1) a good faith reason to move;
2) the move is not against the best interest of the child; and
3) a visitation schedule of the other parent.
The relocator parent has the burden to show cause to relocate and must demonstrate that relocating serves a better life. The noncustodial parent to contest the relocation has the burden to prove that the reasons for relocating are not good faith reasons and instead is being done out of spite. Removal of the child seriously affects the visitation rights of the noncustodial parent, and the courts will seek to preserve the noncustodial parent’s visitation rights.
The child is not to be removed out of the state without consent of both parents, unless court grants the cause shown by the relocator parent, and shall order the preservation of rights of the noncustodial parent and child in maintaining and developing their relationship. The purpose of the court will be to balance these of rights of the noncustodial parent and the rights of the relocator parent to relocate for a better life. In seeking this balance the court is guided by the child’s interest and what is best for the child. There need not be a showing of the child to be ill or disabled by the relocation to cause harm to his/her interests, because the diminished visitation the noncustodial parent will have is sufficient for the court to consider when the noncustodial parent opposes the relocator parent’s removal application.
Preliminary Step: Court will ask questions and seek if the case to relocate is actually a relocation case or if parties are motioning for a change in custody.
First Step: The court will determine the nature of the existing custodial relationship. If the parties are exercising a true shared joint custody, a change of custody application must be done, and the court will be bound to conduct a stringent “best interest” analysis. The analysis will rest solely on the child’s best interest, regardless of the relocator parent’s good faith reason to relocate. In cases like these the relocator parent must demonstrate that the best interest of the child would be better if residential custody is given primarily with the relocating parent.
Next Step: Considering the relevant factors to determine the relocator parent’s good faith.
Factors relevant to determine relocator parent’s good faith:
Courts looks at the following factors relevant to the relocator parent’s burden of proving good faith and the move will not be against the child’s interest:
- Relocator parent’s reasons given for move;
- Noncustodial parent’s reasons given for opposition;
- Past history dealings between parties insofar as it bears on reasons advanced by both parties;
- Whether the child will receive education, health, and leisure opportunities at least equal to what is available here;
- Any special needs or talents of child that require accommodation and whether such accommodation or its equivalent is available in new location;
- Whether a visitation and communication schedule can be developed that will allow noncustodial parent to maintain a full and continuous relationship with child;
- Likelihood that custodial parent will continue to foster child’s relationship with noncustodial parent if more is allowed;
- Effect of move on extended family relationships here and in new location;
- If child is of age, his or her preference;
- Whether child is entering his or her consent;
- Whether noncustodial parent has ability to relocate;
- Any other factor bearing on child’s interest.
Factors for Temporary Removal:
Courts may look at the following separate factors when deciding to temporarily approve a child to relocate out-of-state prior to the decision of permanently relocating the child:
- Whether child is of advanced age such that child consent is relevant in input for permanent relocation;
- Whether temporary relocation will provide a reasonable opportunity for the child to experience living in the proposed new state;
- Whether the temporary relocation will interfere with the child’s present schooling;
- Whether the party seeking the relocation has any history of violating court orders or otherwise demonstrating a flight risk; and
- Whether the other party will also have an equitable opportunity for the child to take an “extended vacation” in that party’s temporary care pending the permanent decision of relocation application.
Visitation Rights of Grandparents
Grandparent visitation statute states that a grandparent has the burden to prove that the granting of visitation is in the best interest of the child. Grandparents are responsible to show evidence that visitation is in the best interest of the child. Only in cases where the grandparent has had a relationship with the child – can the grandparent utilize this statute. The court considers the following factors to determine if the grandparents prove their case by considering the following factors:
- The relationship between the child and the grandparent;
- The relationship of each of the child’s parents or the custodian and the grandparent;
- The time which has elapsed since the child last had contact with the applicant;
- The effect that such visitation will have on the relationship between the child and the parents or custodian;
- If parents are divorced or separated, the time sharing arrangement that exists between the parents for the child;
- The good faith of the grandparent in filing the application with the court;
- Any history of physical, emotional or sexual abuse or neglect by the applicant; and
- Any other factor relevant to the best interest of the child.
Grandparents preliminary step:
Before grandparents seek assistance by the courts the grandparents should make substantial efforts at repairing the deteriorated relationship with the parent of the child. Litigation should not be threatened before absolute denial of visitation from the parent.
Litigation becomes necessary:
Litigation normally will proceed when the parent has persistently resisted the grandparent’s respectful and patient attempts. However, the grandparents must refrain from demeaning or denouncing the parent’s character because such action will be deemed by the court contrary to the child’s best interest.
Grandparent’s Evidence:
Evidence a grandparent may present to the court can be expert or factual evidence.
· Factual: i.e. death of parent, or a break-up of the child’s home by a divorce or separation; evidence of grandparent previously being the full-time care taker of the child will be considered as evidence to the court in favor of the grandparent.
· Expert: i.e. expert testimony by a qualified professional assessing the effect of the circumstances of the termination of a long standing relationship between the grandparents and the child – could be used as evidence to show a basis for a finding of harm.
Grandparent must establish that denying visitation would have a particular identifiable harm to the child. The litigation automatically implicates the Parent’s constitutional rights. Thus, the harm must be shown to be specific to the child to justify any interference with a parent’s constitutional right to raise a the child free from judicial interference. Conclusory and generic evidence, i.e. “loss of potential happy memories” will not be deemed sufficient by the court. The court will only enter an order granting visitation to the grandparent if there is credible evidence that there is a potential harm to the child if the visitation of the grandparent is not permitted.
