New Jersey Custody and Visitation Rights: Determining Child Custody

When couples with minor children are splitting up, child custody is often the most contentious and emotional issue to resolve. Unfortunately, some parents will fight to get full custody at all costs. And many parents see custody cases as a zero-sum game in which one parent wins and the other loses.

But New Jersey's child custody laws are focused on what's best for the children—not what their parents want. And that usually means ensuring that children have frequent and continuing contact with both of their parents after a divorce, while encouraging the parents to share the rights and responsibilities of child rearing. In fact, those goals are explicit state policy. (N.J. Stat. § 9:2-4 (2023).)

Read on to learn the specifics of different parenting arrangements and how New Jersey judges make decisions when couples can't agree.

Types of Child Custody in New Jersey

In New Jersey, as in all states, there are two basic types of child custody that involve different rights and responsibilities: legal custody and physical custody.

• Legal custody refers to parents' authority to make major decisions affecting their children'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 refers to where children will live after their parents separate or divorce.

Within each of these basic types of custody, one parent may have sole custody, or both parents may have joint custody. Here's how that works.

Joint Legal Custody

When parents have joint legal custody, they both have the right to participate in making major decisions for a child. Joint legal custody is very common in New Jersey—even when the child primarily lives with one parent—and it is by far the preferred outcome of custody cases.

When parents reach a custody agreement (more on that below), they may choose to share decision-making responsibility over some matters but not others. For example, they might decide that only one parent will be involved in major educational decisions, while both of them will participate in all other significant decisions.

Of course, just because parents have joint legal custody doesn't mean they'll always be on the same page when it comes to important decisions regarding their kids. If they want to avoid future court fights, they might include provisions in their custody agreement spelling out how they'll resolve any future disputes. For instance, the agreement might provide that they'll follow the advice of the child's pediatrician when the parents have different opinions about vaccinations or other medical treatment.

Sole Legal Custody

A parent with sole legal custody has the right to make major decisions affecting a child without consulting the other parent. With the emphasis today on both parents having an active role in a child's life, sole legal custody is uncommon. You're most likely to see it in situations where a judge finds that one parent is unavailable or unfit.

Under New Jersey law, parents are considered unfit if, among other things, they:

• are "grossly immoral" or incapable of being entrusted with the child's care and education
• neglect to provide the child with proper protection, maintenance, and education, or
• have such "vicious, careless, or dissolute habits" that they endanger the child's welfare.

Parents won't be considered unfit unless their conduct has a substantial negative effect on the child. (N.J. Stat. §§ 9:2-4(c), 9:2-9 (2023).)

Joint Physical Custody

When parents have physical custody—also known as joint residential custody or shared parenting—their children alternate between each parent's home. Shared physical custody covers a wide spectrum of co-parenting schedules. For example, a child might spend at least two overnights per week with each parent or might switch homes on a weekly, monthly, or quarterly basis.

Shared physical custody is rarely an exact 50/50 split. For one thing, it can be difficult to make that arrangement work, particularly when parents don't live close to one another. It also gets harder as children get older and are more involved in extracurricular activities.

Usually, one parent has the child more than half of the overnights in a year, or at least provides the child's primary home during the school year. That parent is known in New Jersey as the "parent of primary residence," while the other parent is the "parent of alternate residence." These designations are important, because they'll affect child support calculations in New Jersey.

The children's primary residence during the academic year will also affect where they're allowed to attend school, even if they alternate between their parents' homes. When children spend an equal time with both parents during the school year, New Jersey has complicated residency rules for determining which school district they may attend. (N.J. Admin. Code § 6A:22-3.1(a)(1) (2023).)

Sole Physical Custody

With sole physical (or residential) custody, the child lives with the custodial parent most of the time and spends less than two overnights per week with the noncustodial parent.

Sole physical custody gives rise to what's generally referred to as "visitation" rights—the right of noncustodial parents to spend time with their children. New Jersey law uses the term "parenting time" rather than visitation, to emphasize the fact that noncustodial parents have an important role in raising their children that extends beyond just visiting with a child. (N.J. Stat. § 9:2-4(b).)

Agreements on Custody and Parenting Time

At some point in the divorce process, most parents work out agreements about child custody arrangements and parenting time. But they need to submit their signed, written agreement for a judge's approval, so that it will be made part of an official court order. Judges will approve these agreements unless they don't appear to be in the children's best interests. (N.J. Stat. § 9:2-4(d) (2023).)

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

If parents haven't been able to resolve substantive custody or parenting time issues, there are usually several steps before the dispute comes before a judge for a trial.

Mandatory Custody Mediation in New Jersey

Whenever anyone with a child files for divorce in New Jersey, court staff will screen the paperwork to see if the parents have a genuine, substantial custody dispute. If so, the court will refer them to mediation—unless there's a domestic violence order in effect.

Custody Evaluations and Other Investigations

If the mediation isn't successful, the judge may order an investigation by the Family Division. Among other things, investigators will look into:

• the parents' character and fitness
• the family's economic condition
• the homes where the children will live or visit (limited to factual descriptions), and
• both parents' criminal records.

(N.J. Rules of Court, rules 1:40-5(a), 5:8-1 (2023).)

Because New Jersey law requires that only qualified mental health professionals may make recommendations about the parents' character and fitness, a judge may order one of these professionals to conduct a custody evaluation. As part of the process, the evaluator may conduct psychological testing and examine various records, as well as interview the parents (and possibly the child). The evaluator will then submit a report to the court and the parents, with recommendations.

The judge doesn't necessarily have to follow these recommendations, but most judges give a lot of weight to what an evaluator believes is best for the children. Still, parents may object to the report. And if they can show that the evaluator was biased, the judge might take that into account. Sometimes, each parent will hire their own custody evaluator—which could lead to a "battle of the experts," with the judge deciding which report is more reliable.

Judges might also appoint a guardian ad litem (GAL) if they believe the children need someone to speak on their behalf in custody dispute. GALs, who are usually attorneys, will interview the children and the parents, as well as any other person who has pertinent information. They may also obtain any relevant documentation. The GAL will submit a report to the court, with findings and recommendations. (N.J. Rules of Court, rule 5:8B (2023).)

Parents' Proposed Custody Plans

Sometimes, parents will reach an agreement after they've seen the results of the custody evaluation. But if they aren't able to resolve their disputes, each of them will have to submit a proposed Custody and Parenting Time/Visitation Plan, including a parenting schedule and their reasons for the type of custody they're requesting. (N.J. Rules of Court, rule 5:8-5 (2023).

How Do New Jersey Judges Make Custody Decisions in Children's Best Interests?

If all the efforts to reach a custody agreement fail, a judge will hold a trial to consider the evidence and reach a decision. When that happens, the judge's primary consideration will be the child's best interests.

But what constitutes a child's best interest can vary from case to case. That's why New Jersey law spells out a number of factors that judges must consider when they making custody decisions, including:

• the parents' ability to agree, communicate, and cooperate in matters concerning their children
• the parents' willingness to accept the terms of custody orders, along with any history of a parent's unwillingness to allow the other parent time with the child (unless it's because of substantiated child abuse)
• the extent and quality of the time each parent has spent with the child before and after the couple separated
• the child's interaction and relationship with both parents and any siblings
• the age and number of all the children in the family
• the child's safety and needs
• the child's preference (as long as the child has the intellectual capacity to make an intelligent decision in that regard)
• the stability of the home environment each parent can offer
• the quality and continuity of the child's education
• how far apart the parents live from each other
• the parents' fitness (as discussed above)
• the parents' employment responsibilities
• any history of domestic violence in the family, and
• either parent's safety from physical abuse by the other parent.

(N.J. Stat. §§ 9:2-4(c), 9:2-4a (2023).)

Getting Help With Child Custody Disputes in New Jersey

As we discussed above, you'll usually be required to participate in court-ordered mediation of unresolved custody disputes once you've started the divorce process. But you and your spouse will need to reach a complete divorce settlement agreement before you file your initial divorce papers if you want the benefits of an uncontested divorce in New Jersey. If you need help doing that, you can turn to voluntary, private mediation. Learn more about how divorce mediation works in New Jersey and how much it costs.

When you have a complete settlement agreement at the outset of the process, you could very well DIY your divorce without hiring a lawyer—which means considerable savings on the cost of divorce. It also means that you could choose to file for divorce online with a low-cost service that will help you with all the forms and basically walk you through the process.

But if voluntary or court-ordered mediation doesn't work, you will almost certainly need the help of a lawyer. A qualified, experienced family law attorney can help you navigate the divorce process and gather the right kind of evidence you'll need to prove that the custody arrangements you want are really in your child's best interests. Family lawyers also can recommend custody evaluators.

Learn more about how to prepare for a custody case and how to enforce or change existing custody or visitation orders.