New Jersey Custody and Visitation Rights: Determining Child Custody

Learn about the types of child custody arrangements in New Jersey and how custody is decided.

By , Retired Judge

An Introduction to Child Custody Laws in New Jersey

When parents are separating or getting divorced, child custody can be a contentious issue. New Jersey custody laws are geared to reducing the hostility. One way of doing this is to dispel the popular misconception that in matters of custody, one parent wins and the other loses.

Today, the emphasis is on fostering a loving and nurturing relationship between both parents and the children, as well as strongly encouraging communication and cooperation between the parents themselves.

In any discussion of custody in New Jersey, there are four basic terms that will crop up: legal custody; physical custody; joint custody; and, sole custody. In some form or fashion, these terms can be interconnected.

"Legal custody" refers to a parent's authority to make major decisions affecting a child's health, education, safety, and welfare. (As opposed to day-to-day decisions, which are generally up to whichever parent the child is physically with at the time.) Major decisions include matters such as 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).

"Physical custody" relates to where children are going to live after their parents separate or divorce.

"Joint custody" occurs when the participation of both parents is applicable to one or more aspects of a custody arrangement.

"Sole custody" limits participation in one or more aspects of a custody arrangement to only one of the parents.

Sorting Out the Custody Combinations in New Jersey

The concepts of joint custody and sole custody can apply to both legal custody and physical custody. Here's an explanation.

What Is Joint Legal Custody?

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 might decide that only one parent will be involved in major educational decisions, but both of them will participate in all other significant decisions. Joint legal custody is very common in New Jersey, even when the child primarily resides with one parent, and it is by far the preferred outcome of custody cases. (N.J.S.A. 9:2-4(a).)

What Is Sole Legal Custody?

A parent with sole legal custody can make major decisions affecting a child without consulting the other parent. With the emphasis today on both parents playing a substantive role in a child's life, sole legal custody is uncommon. You're most likely to see it in situations where a judge makes a finding that one parent is unavailable or unfit. (We'll look more closely at the issue of an "unfit" parent in Part 2 of this article.)

What Is Joint Physical Custody?

You can just as easily ask what is joint residential custody, or what is shared parenting. They're pretty much the same thing. No matter which name you choose to give it, the concept encompasses a broad spectrum of living arrangements. It can be anything from a child spending at least two overnights per week with each parent, to the child staying half the year with each, in whatever time periods the parents agree on. For example, the child switches between homes on a weekly, monthly, or quarterly basis.

A parent who provides a residence for the children for more than 50% of overnights per year or, if sharing is equal, provides the residence for them while they're attending school, is referred to under New Jersey law as the Parent of Primary Residence (PPR). The other parent is the Parent of Alternate Residence (PAR). These designations are important, because in addition to school enrollment, they can affect child support calculations.

You see joint physical custody more often than in the past, but it isn't as common as joint legal custody. (N.J.S.A. 9:2-4(a).) This is particularly true when it comes to attempting an even split of time between residences. Unless the parents live fairly close to one another, the mechanics of making an even split work can be difficult, especially as children get older and are more involved in extra-curricular activities.

What Is Sole Physical Custody?

In New Jersey, sole physical custody (or sole residential custody) basically means that a child lives with one parent most of the time and spends less than two overnights per week with the other parent (called the non-custodial parent).

Sole physical custody gives rise to what is generally referred to as "visitation" rights, which is the ability of non-custodial parents to spend time with their children. 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. (N.J.S.A. 9:2-4(b).) We'll discuss parenting time in greater detail in Part 2 of this article.

Are There Any Other Custody Options Available in New Jersey?

Yes. New Jersey law gives the courts considerable leeway in fashioning custody arrangements. The only condition is that the ultimate determination must be in the best interests of the child. (N.J.S.A. 9:2-4(c).)

The law also provides that parents can submit their own custody arrangement to the court. In fact, N.J.S.A. 9:2-4(d) specifically states that a judge must order such an arrangement, unless it's contrary to the child's best interest.

What Happens if Parents Can't Agree on Custody or Parenting Time?

If parents can't resolve their custody or parenting time issues, the court will order them to participate in mediation, unless there are circumstances exempting them from the mediation process, such as when domestic violence is present in the marriage.

Courts may also order custody evaluations. These are carried out by trained mental-health professionals who will make an assessment of the existing circumstances, and present a non-binding recommendation to the court as to what custody and parenting time arrangements they feel are in the best interests of the children. Custody evaluators charge for their services, and their fee is payable by the parents.

The court can also order an investigation to be made by the Family Division. Among other things, this inquiry will look at:

  • the parents' character and fitness
  • the economic condition of the family
  • the parents' homes (limited to a factual description of the home where the child will reside or visit)
  • the existence of appropriate child safety precautions in the home
  • the number of household members and their relationship to the child, and
  • criminal record checks for both parents.

(N.J. Rules of Court §5:8-1 and following.)

Note that if the court determines that the children need someone to speak on their behalf, it can appoint a guardian ad litem (GAL). This is usually an attorney, who will interview the children and the parents as well as any other person who has pertinent information. The GAL can also obtain any relevant documentation. The GAL will submit a report to the court, with findings and recommendations. (N.J. Rules of Court §5:8B.)

What Does "The Best Interests of the Child" Mean in New Jersey?

As you can see from this article, in the state of New Jersey child custody laws constantly make reference to the phrase "the best interests of the child". But what constitutes a child's best interest can vary from case to case. That's because no two cases are exactly alike.

New Jersey law provides judges with factors to consider in making their determination. Some of these factors are:

  • the parents' ability to agree, communicate, and cooperate in matters relating to the child
  • the parents' willingness to accept custody, and any history of unwillingness to allow parenting time (which isn't based on substantiated abuse)
  • the interaction and relationship of the child with its parents and siblings
  • any history of domestic violence
  • the safety of the child and the safety of either parent from physical abuse by the other parent
  • the child's preference, when the child has the intellectual capacity to make an intelligent decision
  • the child's needs
  • the stability of the home environment offered by the parents
  • the quality and continuity of the child's education
  • the parents' fitness to exercise custody
  • the geographical proximity of the parents' homes
  • the extent and quality of the time spent with the child before or after the separation
  • the parents' employment responsibilities, and
  • the age and number of the children. (N.J.S.A. 9:2-4(c).)

Because custody cases invariably take a toll on all involved, including the children, you should make every effort to resolve your differences without the need for a trial. However, if a trial becomes necessary, the courts do give a priority to hearing custody cases.

For more information about child custody in New Jersey, see New Jersey Custody: Modifying Custody and Enforcing Visitation.

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