Courts making custody awards pursuant to separation or divorce in New Jersey must consider, first and foremost, the best interests of the children involved. This means that a child’s physical and emotional welfare are the paramount consideration in making or evaluating custody arrangements. While every situation is assessed individually, the judge begins by presuming that children benefit from maintaining “frequent and continuing contact with both parents” and from having both parents “share the rights and responsibilities of child rearing.” (N.J.S.A. 9:2-4.)
New Jersey law provides courts with guidance by listing some of the factors that a judge should consider in making a decision about what’s in a child’s best interest. These generally fall into a few basic categories:
A child's physical safety is always a primary concern. This includes ensuring that neither parent poses any risk of physical violence either to the child or to the other parent; judges will take seriously any history of domestic violence. A judge who finds that a parent’s actions pose a risk of substantial harm to the child may order that custody be supervised or suspended. At the same time, unless a parent objecting to custody can prove that the other parent is abusing the child, a court will usually find that it’s in the child’s best interests to have time with each parent.
Judges consider the general stability of the environment in each parent’s home, as well as the quality of the interaction between the child and each parent, and the extent to which each parent has participated in child care both before and since the separation. Courts also consider sibling relationships and usually try to keep siblings together. If the judge believes that a child is old enough and mature enough to make intelligent choices, then the judge may allow the child to state a preference as to custody. The law does not specify a minimum age, but the older and more emotionally mature a child is, the better the argument that the child should have substantial input into custody arrangements.
A court will consider each parent’s ability to communicate and cooperate with the other parent. The key factor here is the ability to co-parent in a peaceful and civilized manner. Willingness to be actively involved in a child’s life is important, but a parent must not interfere with the child’s time with the other parent—a parent who does will be at a distinct disadvantage in any custody dispute.
Practical considerations include the distance between the parents’ homes, the location of a child’s school, the parents’ employment responsibilities, and the age and number of other children in each home. There is no magic formula for weighing such considerations, and it is not always possible to predict how much weight a judge may give to any particular factor.
Parents are free to make their own agreements about how to share parenting time, as long as the schedule does not compromise their child’s best interests. This presents an opportunity to work together to come up with a schedule that will work for everyone. Where the parties cannot agree on an acceptable plan, the court will decide. Many courts require parents who disagree about custody to attend custody mediation. In some cases the court will also appoint an attorney to represent the child’s interests, or a guardian ad litem to investigate circumstances affecting the child and make a report to the court. The parents usually must pay the costs associated with any such appointments.
Custody consists of both legal custody, which refers to a parent’s authority to participate in major decisions regarding a child’s health, education, or general welfare; and physical custody, which refers to the child’s physical presence with a parent. Beyond the policy in favor of shared responsibility, New Jersey law does not favor any particular custody arrangement. Joint legal custody is common, but judges often find that it’s in a child’s best interest to have a primary physical home base, with a parenting plan designating specific times to be spent at the home of the other parent. Parents who are flexible and are able to communicate well have the best chance of being able to manage a joint physical custody plan that approximates a 50/50 time share. Parents should also keep in mind that the needs of children change according to age, and plans may need to be modified and adapted as children grow.