What are the different types of custody?

Custody can be divided up into two parts, legal custody and physical custody. Legal custody means that the parent has the ability to make the major decisions about the child's health, education, safety and welfare. Physical custody refers to which parent the child lives with.

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

The primary standard that the court uses to determine a custody case is always, "what is in the best interests of the child." The court has to determine many factors when it makes this decision.

Some of the factors that are considered when the court makes a custody determination are: (1) emotional and physical environment; (2) the personal safety of the child; (3) moral atmosphere of the household; (4) the mental and physical health of the parents; (5) the age of the children; (6) the age of the children; (7) preference of the child; (8) the prior behavior of the parents, including any history of abuse; (9) the ability of each parent to care for the child; (10) and the importance of religious upbringing within the family.

What type of custody arrangements can a court impose?

Once a court makes a custody determination, there are several possible custody arrangements that a court may impose. The court may impose: (1) sole physical or legal custody; (2) sole physical custody with joint legal custody; (3) joint custody. The term "joint" does not mean equal. Instead, "joint" means that the parties equally share the obligation to raise the child.

What is the most traditional custody arrangement that a court imposes?

The most traditional arrangement is for the parties to share joint legal custody, and the wife/spouse in most cases gets physical or residential custody. When one parent receives custody, the other parent receives visitation rights. This parent is also referred to as the non-custodial parent. The amount of visitation rights that a parent receives varies in each individual case. Visitation rights cases range from supervised visitation at the court house, to splitting parenting time equally.

Are the children's wishes considered by the court in a custody dispute?

In many cases, the court will consider the children's wishes if they believe that they are of an age to make an intelligent decision. The court will then interview the child in chambers. The court will then ask the child if they have a preference with regard to custody. This type of interview with the child is called an "in-camera interview." The goal of this type of interview is to assist the court to determine what the child's wishes are. In many cases, younger children are often influenced by the parent with whom they live with. Therefore, sometimes a young child's answers may be skewed. Alternatively, older children are much less influenced by their parents. A court always takes into consideration the age of the child when it determines how much weight to place on the outcome of the interview.

How can a person apply for custody of their child?

The first step that a person must take in a custody case is to file a complaint or a motion with the court. Once the custody application is received by the court, it will then be reviewed to determine if the case should be sent to custody mediation. Each county has their own custody mediation procedure. However, in almost every county, a custody case is first sent to mediation to try to work out a reasonable compromise. In addition, all parents are required to take a parental education class. These classes are run by the county, and there is only one session. If the custody mediation is unsuccessful, then the court will then order a hearing to determine the issues of custody and mediation.

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

When the parties are not married, this type of case is referred to as a non-dissolution case. This type of case is given a FD docket number. A custody dispute for people who are not married is treated the same way as it is for married couples. The parties are also referred to custody mediation. Moreover, in FD cases the issue of paternity also frequently arises. In many cases, the father if he contests paternity may be required to take a paternity test. This is a relatively simple procedure. The paternity test(s) is usually given by Lab Corp. These tests consist of a lab tech taking a swab on the inside of a person's mouth. The results are usually provided within three to four weeks.

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

A "Guardian Ad Litem" is an attorney who is appointed to represent the children themselves, and not the parents in a divorce case. Usually, a guardian ad litem is only appointed in the very nasty cases. A court usually appoints a guardian ad item when they believe that the children need their own lawyer to protect their interests. In many divorce cases, the parents become so enraged that the court feels compelled to appoint a guardian ad litem. The downside of appointing a guardian ad litem is that the parties have to split the costs of hiring the lawyer/guardian ad litem.

In summary, a custody case can be a wonderful opportunity for a family to blow all of their money and life savings. If a guardian ad litem is appointed, then the family will have to pay for three lawyers; the wife's lawyer, the husband's lawyer, and the guardian ad litem. If the case drags on, then legal fees can fast approach the $20K to $35K range. If at all possible, I strongly advise all parties to try to work out a custody arrangement that everyone can live with. Custody disputes are really just a miserable experience. In many custody cases, a family often blows all of their savings, and they also become heavily in debt to their lawyer(s). It is not uncommon at all for a person to file for bankruptcy after they have endured a bitter custody case. I hear of these horror stories all of the time.

What kind of assessments does the court make of the parents?

In many custody cases, one parent alleges that the other parent is an unfit parent, and they should not have custody. In this type of case, the court will order an evaluation of the parties. These types of evaluations are called a best interest investigation, a risk assessment, and/or a psychological evaluation.

A risk assessment is an evaluation that is provided by the court on request. A risk assessment is conducted by the County Probation Department. A risk assessment is usually requested when one parent is alleged to have an alcohol or drug problem. A risk assessment is also often requested when one parent has a history of sexual abuse. These types of cases are the nastiest.

For a risk assessment, a member of the Probation Department will go to the parties homes and determine if it is safe for the child to have visitation there. Many courts are just overwhelmed. In some counties, it can take many many months for a risk assessment to be completed. In other less backlogged counties, a risk assessment is completed in a timely fashion.

Another type of evaluation conducted by the courts is called a "best interest investigation." This type of investigation is also performed by the County Probation Department. There is no charge to the parties for the court to conduct this type of investigation. This type of investigation looks into the character and fitness of the parents, the economic condition of the family, and the financial abilities of the parties.

Finally, a court can also order a psychological evaluation of the parties. Whether a court grants an application for a psychological evaluation will depend on the individual judge. A psychological evaluation is costly, and the parties must also pay for this expense.

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

In many custody cases, there are different states of jurisdiction that are involved. It is not uncommon for a spouse to leave New Jersey once he or she encounters marital problems. In many cases, a person may obtain a custody order from another state. If there is a custody order from another state besides New Jersey, then a determination must be made if the order will be enforced.

In New Jersey, our courts do not always give "full faith and credit" to a sister state's custody decree. The reason for this policy is that custody judgments involve continuing relationships, and they are always subject to changing conditions. When a New Jersey court reviews an out of state custody order, it must look to the basis of the court's jurisdiction, the location of the child, and the court's access to necessary info about the child and its present custodian. Moreover, the New Jersey court will not enforce an out of state custody order if it is not in the best interests of the child.

What is the UCCJA?

The UCCJA stands for the Uniform Child Custody Jurisdiction Act. The purpose of the UCCJA is for states to cooperate with one another in placing children up for adoption. The UCCJA permits jurisdiction to be exercised by the home state or a state having a significant connection with the child.

The UCCJA was enacted to allow the states to avoid jurisdictional competition in bitterly contested custody disputes. It also ensures that custody cases are litigated in the state that has the closest connection with the parties and the child. Under the UCCJA, a New Jersey court has jurisdiction to make a child custody determination if the child resides in New Jersey at the time of the filing of the custody case, or if New Jersey has been the child's home state within six (6) months before the commencement of the case. The court will also assume jurisdiction of the custody case if it is in the child's best interests, if one parent has significant ties to New Jersey, or if there is substantial evidence regarding the child's present or future care in the Garden State.

Under the UCCJA, there are four standards that are used to determine if an alternate jurisdiction should be granted. The four standards are: (1) the state is or has been, within six months of the custody case, "the home state" of the child; (2) it is in the best interests of the child to proceeds in the former state because the child and the family have a significant connection there; (3) the child is present in the jurisdiction and is abandoned or threatened with harm; and (4) no other state has jurisdiction and it is in the best interests of the child that the former state entertain that dispute.

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

A custody dispute that involves different countries is becoming more common all of the time. I am sure that many people have heard of the case wherein a man marries a "hot looking" latina woman. Quite frequently, once marital problems arise, the latina women moves back to South America, Central America, the Dominican Republic, or to the Caribbean. Moreover, those arranged marriages from India often are a disaster. I have heard of many cases wherein the Indian wife leaves her husband and goes back to India. Quite often, the Indian wife also leaves with the child(ren).

The plain truth of the matter is that the world is getting smaller as each generation passes. In the near future, inter-country custody disputes will be just as common as interstate custody disputes.

The UCCJA also applies to international custody disputes in a case where the child has been removed from the United States. If a child is removed from New Jersey to another country, then a person can apply to have any international custody dispute decided by a New Jersey Court. However, it may be difficult to have a New Jersey custody order to be enforced in another country.

What is the Hague Convention?

On October 25, 1980, an international convention was held at the Hague. Here, numerous resolutions were adopted that concerned the wrongful removal of children from their home country. The resolutions of the Hague Convention was ratified by the United States in 1988. A parent has one year, as per United States law, to apply under the Hague for the wrongful removal of a child.

Under the Hague Convention, a parent may also oppose the return of a child. The parent has the burden of establishing, by clear and convincing evidence, that one of the following exceptions apply:

1. The person was not actually exercising custody rights at the time of the removal or retention or had acquiesced to the removal or retention;

2. There is a grave risk that his or her return would expose the child to physical psychological harm and place the child in an intolerable situation;

3. The child objects to being returned.

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?

The party who remains in the United States can apply to the court for a modification of the custody agreement. However, before this application can be made, the person must satisfy the four requirements of the Hague Convention. The party who still resides in the United States must prove that: (1) both countries participate in the Hague Convention; (2) that the child was a habitual resident of the United States immediately before the removal; (3) that the child is under the age of 16; and (4) that the removal of the child was wrongful. If the person who still lives in the United States can prove these four requirements, then he can make an application in the foreign country where the child is now residing for custody.

When will a New Jersey Court recognize a foreign country's decision regarding custody?

A New Jersey court will recognize a foreign country's decision regarding custody, provided that the foreign country had adequate jurisdiction over the case, the New Jersey spouse had adequate notice, and the other country considered the "best interests" of the child.