Child custody issues often come up between divorcing or unmarried parents. There are two distinct parts to child custody: “physical” and “legal.” The parent a child lives with has “physical” custody. In New Jersey, courts sometimes call this “residential custody.”
A parent with “legal custody,” on the other hand, has authority to make major decisions affecting a child’s health, education, safety, and welfare. While day-to-day decisions regarding a child’s activities are generally up to whichever parent the child is physically with during those activities, parents with legal custody are entitled to participate in decisions about things like where a child will go to school, whether or not a child will attend religious services or instruction, and when a child needs medical treatment (other than routine health care or emergency treatment).
In New Jersey, “sole physical custody” or “sole residential custody” means that a child lives with one parent most of the time and spends less than two overnights per week (or the equivalent), plus some additional vacation or holiday time, with the non-custodial parent.
"Visitation" refers to the time that a non-custodial parent spends with a child when the other parent has sole physical custody. New Jersey courts prefer to use the term "parenting time," to emphasize the fact that a non-custodial parent has an important parenting role that extends beyond just "visiting" with a child.
If a child spends more than approximately two overnights per week with each parent, the parents have “shared physical custody.” New Jersey laws refer to one parent as the “parent of primary residence” and the other as the “parent of alternate residence.” These designations can affect things like child support calculations and a child’s legal residence for school attendance.
Shared physical custody plans vary widely and range from plans where one parent has slightly more time than visitation under a sole physical custody plan, to plans where a child spends equal or nearly equal time with each parent. Shared physical custody is becoming more common, but it generally works best when parents live fairly close to one another and can make parenting decisions together without a lot of conflict.
In New Jersey, “joint custody,” or “joint physical and legal custody,” sometimes refers to a type of custody where the parents share parenting time equally and also participate equally in parenting decisions. If a court finds that this type of parenting arrangement exists, it might make an additional adjustment to child support calculations beyond the usual adjustment for shared parenting time. True joint physical and legal custody is still fairly unusual as it requires a very high degree of cooperation between the parents.
Parents with joint legal custody both have the right to participate in making major decisions for a child. Sometimes parents agree to share legal custody over some matters but not others. For example, they can agree that only one parent needs to be involved in major educational decisions while both parents will participate in all other major decisions. Joint legal custody is very common in New Jersey, even when one parent has sole physical custody.
A parent with sole legal custody can make major decisions affecting a child without consulting the other parent. Sole legal custody is unusual. It is most often put into place by a judge after a finding that one parent is unavailable or unfit.
A court might find a parent to be unfit if the parent has a history of some type of behavior that poses a substantial physical or emotional danger to a child. The behavior is generally something serious, such as child abuse or neglect, or drug addiction. In extreme cases a determination of unfitness can be the basis for a court proceeding terminating parental rights. In most cases, a parent will retain visitation rights, but visitation may be supervised or restricted for the child’s protection. It isn’t uncommon for one parent to accuse the other of “unfitness” in a custody battle. If the accusations seem to have some merit, the court might order a custody evaluation, a best interest’s evaluation, or a family risk assessment.
Custody evaluations are generally carried out by private psychologists appointed by the court on request of one or both parents or the court’s own initiative. The purpose is to provide information on what kind of parenting arrangement would be best for a child when the parents disagree.
These evaluations are quite expensive and the parents must pay for them. If the parents can’t afford a private evaluation, the court can ask the county probation department to conduct an evaluation, called a “best interests evaluation.”
See Child Custody Evaluations: Do’s and Don’ts for Parents for some tips.
A “risk assessment” is carried out by a county probation department when an issue arises regarding a parent’s ability to provide a safe environment for a child. Any of these evaluations or assessments may include interviews with the parents; interviews with other people important to the child, such as grandparents or teachers; review of school, medical, or psychological records; and home visits.
Not only are parents free to make their own arrangements, courts actively encourage them to do so. Parents with child custody or parenting time disputes must participate in mediation unless there is some circumstance excusing this, such as domestic violence. The court provides free and confidential mediation during which a court-appointed mediator tries to help the parents work out a mutually acceptable parenting plan without attorney participation. If the parents are still unable to agree on a plan after mediation, the court will ask each of them to submit a proposed plan. The court might choose one parent’s plan or create another plan based on the child’s best interests.
New Jersey courts start with a policy favoring shared parental responsibility and frequent contact between a child and both parents. Beyond this, courts can divide physical and legal custody of a child between the parents in any way that serves the best interests of the child. Courts can consider any factor that affects the child’s best interests, including the following:
For more information about child custody in New Jersey, see N.J.S.A. 9:2-4 and New Jersey Custody and Visitation Rights, Part 2.