New Jersey Custody: Modifying Custody and Enforcing Visitation

As any divorced parents know, co-parenting problems don't always end after the divorce. Whether you're dealing with an ex who's always late to pick up the kids or more serious issues, the best approach is usually to talk things over and find solutions between yourselves. But that's not always possible, either because your co-parent is uncooperative or hostile, or because the circumstances don't lend themselves to an easy compromise—as when a custodial parent needs to move across the county for a job or a teenager refuses to go along with visitation.

If you can't resolve your dispute through mediation (more on that below), you may need to go to court to enforce or change your existing parenting plan. This article explains how to do that in New Jersey.

• How to Enforce Custody and Visitation in New Jersey
  • Remedies in New Jersey Courts for Custody Violations
  • Criminal Charges for Custody Interference
• How to Change Parenting Time in New Jersey
  • Agreements to Change Parenting Time
  • Requesting a Custody Modification in Court
• Common Reasons Judges Might Change Child Custody in New Jersey
  • When a Custodial Parent Wants to Move Away With the Child
  • When a Parent Has Violated a Custody or Visitation Order
  • A Change in the Child's Needs
  • Changes in Parents' Fitness or the Need for Supervised Visitation
• Can a Court Terminate a Parent's Rights?
• Getting Help With Enforcing or Modifying Child Custody in New Jersey

How to Enforce Custody and Visitation in New Jersey

At the outset, it's important to understand that judges typically don't want to get involved over minor or infrequent violations of parenting or visitation schedules. But when the violations are repeated or serious, you have the right to go back to court to enforce the existing orders.

Remedies in New Jersey Family Court for Custody Violations

You'll need to file a motion (a formal written request) requesting enforcement and serve the papers on your ex. A judge will then hold a hearing on your request. If the judge finds that your ex has violated custody or parenting orders, New Jersey allows any of a number of remedies that the judge believes would be fair under the circumstances, including:

• modifying the existing custody arrangement, either temporarily or permanently (more on that below)
• economic sanctions, such as awarding you compensation for additional child care costs you had to pay because your ex didn't show up for scheduled parenting time or visitation
• allowing you extra time with your children
• requiring that the kids be picked up and returned in a public place
• changing the transportation arrangements for transferring the kids between parents
• requiring your ex to pay for counseling
• finding your ex in contempt of court, which could lead to a $50 fine for each separate violation of the custody order
• issuing a warrant that would be carried out if and when there are any further violations, and
• requiring your ex to perform community service or even go to jail.

(N.J. Rules of Court, rules 1:10-3, 5:3-7(a) (2023).)

Criminal Charges for Custody Interference

A parent who takes, keeps, or hides a child in order to deprive the other parent of custody or parenting time could face criminal charges in New Jersey for interference with custody (sometimes called "parental kidnapping"). The law allows certain defenses to this crime, including when the defendant had good reasons to believe their actions were necessary to save the child from immediate danger. (N.J. Stat. § 2C:13-4 (2023).)

Interference with custody is a second or third degree crime in New Jersey (similar to a felony in other states), depending on whether the defendant took the child outside of the country or kept the child for more than 24 hours. (N.J. Stat. § 2C:13-4 (2023).)

How to Change Parenting Time in New Jersey

As we mentioned above, a judge may modify custody as part of an enforcement proceeding when one parent has violated existing orders. But you might also want to change your parenting plan simply because circumstances have changed, and a different arrangement would be best for your child or children.

Agreements to Change Parenting Time

If you and your ex can agree on changes to your current parenting arrangement—whether on your own or with the help of a mediator or lawyers—that would be the easiest solution. But it's important to submit the written agreement for court approval so that it can be incorporated into a new order (and enforced if there are any future violations). Keep in mind that the judge will only approve the changes if they appear to be in the children's best interests.

Requesting a Custody Modification in Court

Without an agreement on the changes you want, you'll need to file a motion to modify child custody. When you do that, court staff will screen your paperwork to determine whether you have a genuine and substantial issue. If so, the court will refer both parents to mandatory custody mediation, except in certain cases involving domestic violence (N.J. Court Rules, rule 1:40-5 (2023).)

In cases where mediation doesn't lead to an agreement, the laws in New Jersey don't spell out what should happen next. But New Jersey courts have held that parents must go through a two-step process to get a custody modification:

• Prove changed circumstances. First, the parent seeking a modification must convince a judge that there's been a substantial change in circumstances since the existing order was issued.
• Hearing on child's best interests. Then, only after the parent has met the changed-circumstances threshold requirement, the judge may hold a "plenary hearing" (similar to a trial, with witness testimony and other evidence) to decide whether the current custody arrangements are in the child's best interests.

(R.K. v. F.K., 96 A.3d 291 (N.J. Super. Ct. App. Div. 2014).)

At the modification hearing, the judge will consider the same factors that go into original custody decisions in New Jersey. If it's necessary to get an expert's opinion to help make that decision, the judge may order a custody evaluation by a mental health professional. (N.J. Stat. § 9:2-4, N.J. Rules of Court, rule 5:3-3(b) (2023).)

Common Reasons Judges Might Change Child Custody in New Jersey

Of course, many different things can change in the lives of children and their parents. Some of those changes could make the current parenting arrangements unworkable or less than optimal—especially planned relocations, violations of custody orders, and changes in the needs of the children or their parents' situation. But remember: Even if the circumstances have significantly changed, New Jersey judges may not modify custody unless they find that the current parenting arrangements are no longer in the children's best interests.

When a Custodial Parent Wants to Move Away With the Child

There are many legitimate reasons parents may want or need to move, whether it's for a new job or to take care of aging parents. But those plans can create serious conflict when a parent wants to take the children along, and the relocation would be far enough to get in the way of the other parent's rights to spend time with the child.

New Jersey law usually requires getting permission from the other parent or the court before moving a child out of state, unless the children haven't lived in the New Jersey for five years (and weren't born there), or they're old enough to consent to the move themselves. (N.J. Stat. § 9:2-2 (2023).) But even parents who are planning to move within the state will probably need permission if the move would disrupt the current parenting plan.

Under the current legal standard for "move-away" cases in New Jersey, whenever parents share legal custody (regardless of where the children live most of the time), judges must decide whether a proposed relocation would be in the children's best interests, even if a parent has a legitimate reason for moving away. (Bisbing v. Bisbing, 166 A.3d 1155 (N.J. Sup. Ct. 2017).)

When a Parent Has Violated a Custody or Visitation Order

If you're dealing with a co-parent who's withholding visitation or parenting time, you may want to change the existing custody arrangement to have the kids live with you most of the time. One parent's repeated or chronic violations of custody orders might qualify as a significant change in circumstances. But here again, the judge will have to look at what's in the child's best interests before agreeing to modify the current parenting arrangement. For instance, a judge might find that a child is being harmed in some way because of a parent's inability or unwillingness to comply with the parenting plan—which is one of the factors that judges must consider when making custody decisions.

A Change in the Child's Needs

Children's needs change throughout their lives. For instance, they might:

• develop new or worsened medical or psychological conditions
• be diagnosed with learning disabilities or develop other problems in school, or
• have trouble dealing with new stepsiblings or stepparents.

Some changes happen simply as a part of growing older. For example, it might be relatively easy for young children to shuttle back and forth frequently between parents who live across town or even in different cities. As they grow older, however, adolescents often rebel against shared parenting schedules that require spending a lot of time far from friends and extracurricular activities.

When a child refuses visitation with a parent, it's the other parent's responsibility to do everything possible to get the child to cooperate. But those efforts won't always work, especially with a strong-willed older teenager. When that happens, either parent may seek a custody modification. And when a judge is deciding what would be in a child's best interests, the child's preference is one of the factors for consideration—as long as long as that child has the maturity and capacity to make an intelligent decision on the issue. (N.J. Stat. § 9:2-4(c) (2023).)

If parents can't agree on adjustments to the parenting schedule (and one of them goes through the steps described above to get a hearing on a modification motion), the judge might decide that it would be in the children's best interests to modify custody, based on their current needs.

Changes in Parents' Fitness or the Need for Supervised Visitation

Sometimes, it's not safe for children to spend time alone with a parent, such as when the parent has a history of child abuse, serious mental illness or substance abuse, or other problems that could endanger the child. But New Jersey recognizes that it's best for children to have an ongoing relationship with both of their parents, whenever that's possible. So judges may order supervised visitation rather than simply cutting off contact with a parent who can't be trusted to keep a child safe. An approved community organization may provide the facilities and personnel to monitor the visitation. (N.J. Stat. §§ 2A:12-7 and following (2023).)

If you've learned something new about your co-parent's psychological or mental condition that could affect your child's welfare, you may ask the judge to modify the current parenting arrangement to require supervised visitation. And if you're the parent who's been limited to supervised visitation, you may ask the court to change or lift the visitation conditions if you can show that they're no longer necessary—for instance, by providing documented proof of successful drug or alcohol rehabilitation.

Can a Court Terminate a Parent's Rights?

The answer is yes, but this should only happen in the most extreme cases of parental misconduct. The termination of parental rights severs all legal ties between the parent and the child, including custody and parenting time rights. The New Jersey Division of Child Protection and Permanency (DCP&P) may file a formal application with the court to terminate parental rights based on the best interests of the child, but only if all of the following is true:

• the parent's relationship with the child has endangered (or will continue to endanger) the child's health, safety, or development
• the parent is unable or unwilling to eliminate that harm or provide a safe and stable home for the child
• the agency has tried to correct the problems
• the court has considered alternatives to termination of parental rights, and
• termination will not do more harm than good.

Courts may also order a termination of parental rights based on a parent's abandonment of a child for at least six months. (N.J. Stat § 30:4C-15.1.)

Getting Help With Enforcing or Modifying Child Custody in New Jersey

You should know that court proceedings to modify custody can be difficult to navigate without the help of a lawyer. An experienced, New Jersey family law attorney will know how to gather and present the kind of evidence needed to convince a judge that the circumstances in your situation have changed substantially, and that a custody modification would be in your child's or children's best interests. The same is true if you're fighting a modification motion filed by your ex—if at all possible, you should have a lawyer representing you in court.

But of course, not everyone can afford to hire a lawyer. That's why it's at least worth trying mediation. If you participate in court-ordered custody mediation and choose a mediator from the court directory, you won't have to pay for the first session. (Learn how mediation works in New Jersey and how much it costs.)

Finally, you can find helpful resources through the New Jersey Courts Self-Help Center, including a self-help packet with instructions and forms for filing a motion to enforce or modify custody.