Understanding Child Custody in New Jersey
Many people think that child custody refers to the parent with physical custody of a child. However, child custody refers to two different things in the Garden State: legal and physical. Legal custody over a child is the ability to make important decisions about a child's upbringing, including who has the authority to make decisions about the child's religious upbringing, education, and medical care. This is also referred to as legal decision-making authority and can be shared between the parents or held solely by one parent vs. the other.
Physical custody refers to where the child primarily lives. Multiple types of physical custody arrangements can be agreed to or ordered by the court, including sole physical custody, shared physical custody in which the child lives with each parent equally, or shared custody in which the child spends more than 50% of the time with one parent but has liberal visitation with the other parent.
Sole vs. Joint Legal Custody in New Jersey
Legal custody of a child might be solely held by one parent or shared between the two. If a parent has sole legal custody, they can make decisions about the child's education, religion, and medical care without consulting the other parent. Parents might also have joint legal custody under which the parents need to consult with each other to make joint decisions for their child.
In some situations, a parent might have sole legal custody over one area of a child's upbringing while sharing legal custody over the others. For example, suppose the parents agree on their child's religious upbringing and medical care but can't work together to make educational decisions for their child. In that case, the court might award one parent sole authority to make educational decisions for the child that are in the child's best interests while ordering the parents to work together to make decisions about the child's medical care and religion.
Sole vs. Joint Physical Custody in New Jersey
Like legal custody, physical custody can be joint or sole. Sole custody is ordered in only rare circumstances in which a child would be in danger of physical or emotional harm if placed in the physical care of one parent. This type of physical custody might be ordered in situations in which there is a history of domestic violence perpetrated by one parent against the other parent and/or the child or when a parent has a lengthy and substantiated history of chronic drug and alcohol abuse. In that type of situation, the court might find that it is in the child's best interests to award the competent parent sole physical and legal custody of the child while the other parent has only limited visitation. In cases in which a child would be in danger in the care of a parent, that parent might only be granted supervised visitation or no visitation at all.
In most cases, however, courts favor liberal visitation with both parents and recognize that children tend to be better adjusted when they have ample opportunity to build relationships with both parents by spending time with them. Courts can award joint physical custody in which the child spends equal amounts of time with both parents, or parents can agree to joint custody.
Joint custody schedules can be created in several ways, including switching between homes on alternating weeks or splitting time on an alternating schedule such as 3/4/4/3 or 3/2/2/3 between the different homes.
Shared custody can also include arrangements in which a child spends more than 50% of the time with the primary parent and the remaining time with the other parent. For example, a child might spend 60% of the time with the primary parent and 40% with the alternate parent. Other examples might include one parent having primary residential custody of the child during the school week while the other parent enjoys weekend visitation plus two months during the summer and other similar arrangements.
Child Custody, Support, and Visitation
New Jersey courts view child custody, visitation, and support as separate issues. Visitation deals with a child's time with a parent and is unrelated to the obligation to pay child support. In New Jersey, courts believe both parents have a legal obligation to provide financial support to help raise their child regardless of the visitation and custody arrangements that might be in place.
By contrast, child custody determinations are based on what is in the child's best interests based on the court's consideration of multiple factors.
New Jersey has child support guidelines that help judges determine the appropriate amount of support to order. The guidelines consider both parents' gross incomes to determine the total child support obligation and each parent's responsibility to pay their portion. If a child primarily lives with one parent, the court will assume that the primary parent already spends their portion of the child support obligation on raising their child.
The child support amount the other parent will have to pay will also depend on how many overnights or overnight equivalents the child spends with the paying parent, any amounts the parent pays for the child's medical insurance and child care, the child's extraordinary needs, whether the payor parent is already paying support for a different child under another support order, and other factors.
While some parents might think that they can withhold a child from visiting the other parent when that parent is behind on their child support payments, that is not the case. Since child support and visitation are viewed separately, that parent still enjoys visitation rights even when they are behind on their child support payments.
Factors Courts Consider
If the parents are unable to negotiate a parenting plan agreement, the court will consider the following factors when deciding what arrangement will be in the child's best interests:
- The relationship the child enjoys with each parent
- Each parent's willingness to encourage the child's relationship with the other parent
- The child's adjustment to their home, community, and school
- The willingness of the parents to communicate and cooperate for the child
- Any history of unwillingness to allow the other parent to enjoy parenting time
- Any history of abuse/domestic violence
- Any history of substance abuse
- The child's safety from physical abuse
- The child's preference if they are of a sufficient age and maturity
- The physical and mental health of each parent
- How close the two parents' homes are to each other
- Each parent's employment responsibilities
- Ages, number of children, and relationships of the child to each person in the home
- Other relevant factors
When there are concerns about one parent's fitness, the court might order them to undergo an evaluation or risk assessment.
Filing for Custody Rights
A parent can file a petition for custody with the court to establish the child's legal and physical custody and parenting schedule. If the parents are going through a divorce, child custody and support will be handled as a part of the divorce case. When a complaint for custody is filed, the parent who files it must properly serve the other parent to provide them notice and allow them time to respond.
Each parent will need to create a proposed parenting schedule to submit to the court. The parents can negotiate with each other to try to create a parenting plan that works best for everyone involved. If the parents can create a full parenting agreement, the court will adopt the plan and include it as the court's order as long as it is in the child's best interests. If the parents can't agree, the court will hold a hearing and issue orders based on what the court finds is in the best interests of the child after reviewing testimony and evidence presented by both parents and any witnesses that might be called.
Modifications of Custody and Support
Once the court has issued child custody, visitation, and support orders or adopted an agreement reached by the parents, both parents must comply with the orders. They can only be modified if the circumstances have substantially changed from the time the original orders were issued and when the modification is sought. The parent seeking the modification will also need to show the changes are in the child's best interests. For modifications of the child support amount, the parent will need to show that there has been a substantial change in financial circumstances that would change the ordered amount by a significant amount.
Talk to a Divorce Lawyer in New Jersey
Child support, custody, and visitation issues can involve significant conflict between a child's parents. If you are dealing with these types of family law issues, you should seek legal help from a divorce lawyer in New Jersey at the Ziegler Law Group. To learn about your rights and legal options, call us today at (973) 878-4373.
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