New Jersey Custody and Visitation Rights: Part 2

Learn about modification of child custody in New Jersey, relocation, visitation rights, and more.

Can I change a custody arrangement?

After a child custody arrangement is established (either by court order or an agreement between parents), either parent can try to modify or change the arrangement. Generally, child custody arrangements are not considered “final.” They’re typically modifiable, because as children age, their needs change. An arrangement that worked well for a toddler might not work as well once that toddler starts school or becomes a teenager. In addition, circumstances might change over time for one or both parents.

If you want to change your custody arrangement but your child’s other parent won’t agree you’ll need to head to court. The parent requesting a modification will have to prove that a significant “change of circumstances” has occurred since the original custody arrangement was created. The parent seeking a change in custody must file a motion (legal paperwork) that explains why a change should be granted.

The parent requesting the change will need to specify whether the request is for a modification of the child’s “legal custody,” “physical custody,” or both. As explained in part one of this article, legal custody refers to a parent’s authority to make major decisions about the child’s health, education, safety and welfare. Physical custody refers to who the child will live with.

The court will likely order a hearing. During the hearing, the parent requesting a change will have to prove (with evidence and/or live testimony) that something significant happened after the court made its original custody order. For example, if the custodial parent’s home is no longer stable or safe for the child to live in, that might justify a change in physical custody.

If a bitter custody dispute arises, a court will likely refer the case to custody mediation. Mediation is a form of dispute resolution in which the court appoints a trained custody mediator to help parents reach a solution that’s in the child’s best interest. The mediation process requires both parents to cooperate and work on formulating a reasonable parenting plan. If, as a result of mediation, you and your child’s other parent are able to agree on a new custody arrangement, it will become binding (mandatory) on both parents after the court approves it. If you can’t agree, the court will have to decide whether custody should be modified and if so, how.

For more information about court-ordered custody mediation, see New Jersey Court Rule 1:40-5.

Can a custodial parent move out of New Jersey with the child?

When a custodial parent (the parent with physical custody of a minor child) wants to move out of New Jersey, that parent must get the other parent’s consent. If the non-custodial parent doesn’t consent to the move, then the court will need to get involved. The custodial parent must file an application with the court, asking for permission to relocate with the minor child. Moving the child without first getting the court's permission could be a violation of New Jersey law.

Whether you’re the parent that wants to relocate or the parent that wants the child to stay put, you will likely have to go to court and fight it out. This type of custody battle, commonly referred to as a “move away” case, is legally complex and emotionally challenging for both parents. With so much at stake, you should definitely speak to a local family law attorney who specializes in child relocation issues.

What visitation rights does a parent have in New Jersey?

Visitation is different from custody; it refers to the amount of time the non-custodial parent will get to spend with the child. For example, a parent who doesn’t have legal or physical custody may still have a right to spend time with his or her child. The specific times the non-custodial parent can visit with the child is often spelled out in a “visitation schedule” which was either worked out between the parents or determined by the court.

Visitation rights are strongly protected by the New Jersey courts and the legislature, which has adopted a policy to assure minor children frequent and continuing contact with both parents. In New Jersey, non-custodial parents have a constitutional right to visit their children. Therefore, absent some extreme circumstances, it’s very difficult to completely terminate visitation rights.

What types of visitation schedules are available in New Jersey?

In New Jersey, parents can agree to a visitation schedule that suits their particular circumstances, as long as it’s in the best interest of the child. A common visitation plan provides the non-custodial parent visitation every other weekend and one night of the week.

However, a new trend in family law is to have shared physical custody, commonly referred to as a “shared parenting plan.” This means that the children live with both parents as close to an equal amount of time as possible. Although some parents who pursue this type of arrangement do so in the hopes of reducing the amount of child support they have to pay (more custodial time could mean lower child support payments), this type of arrangement could benefit the children by providing frequent and continuing contact with both parents. It’s best if parents can work out a reasonable visitation plan on their own in order to avoid the stress and expense of going to court. If parents can’t agree, a court will implement a visitation schedule that it believes is appropriate.

What is supervised visitation?

Supervised visitation means a parent will be allowed to visit with their child only while being monitored. A court may find it appropriate to order supervised visitation where a parent has a history of child abuse, medical disabilities, psychiatric problems, or other issues that may jeopardize the safety and welfare of the child. If it’s unsafe to leave a child alone with a parent under these or similar circumstances, the court may order that all visits be supervised.

As for who serves as supervisor, it may be a person appointed by the court at a public facility like the local courthouse or sheriff’s department. The New Jersey legislature enacted the Supervised Visitation Program, which promotes court-ordered supervised visitation by having approved community organizations throughout New Jersey supply facilities and personnel to enable supervised visitation. See N.J.S.A.2A:12-7. Courts that order supervised visitation may require that the visitation take place at an approved community organization. See N.J.S.A. 2A:12-12. For a list of supervised visitation providers in New Jersey, see the Supervised Visitation Directory.

What can be done if a parent fails to follow the visitation schedule?

A common problem with visitation is that one parent fails to comply with the established schedule. Visitation schedules (even if originally agreed to by the parents) become court orders. Therefore, a parent who fails or refuses to follow a visitation schedule has disobeyed a court order. If a parent keeps this up, a court may decide to sanction (punish) him or her by ordering payment of monetary fines.

If one parent continually violates the visitation schedule by, for example, refusing to let the other parent see the children during the scheduled times, the court may transfer custody to the parent being denied visitation rights. However, this result is very harsh and likely reserved for the most extreme cases of violations.

Will a court order visitation if a child doesn’t want to see his or her parent?

When a child doesn’t want to see the other parent, there are a few factors a court will consider in deciding whether to order visitation. Because parental visitation rights are so strongly protected, a court will have to carefully balance parental rights against the child’s preference.

Of course, the overriding question will be whether ordering visitation would be in the child’s best interest. In addition, a child’s stated preference and the child’s age are important factors. Courts are required to consider the desires of the child when that child is of “sufficient age and capacity to reason.” The older the child, the more weight the child’s preference will be given. If the child is young, then the courts are more inclined to order visitation despite the child’s stated preference.

At age 16 however, a child is considered old enough to make an intelligent decision as to whether he or she wants to visit with a parent. Although an older child’s opinion is important, it won’t end the matter. With visitation disputes, a court will look carefully at the child’s stated preference to make sure it’s not driven by immaturity (e.g. the child doesn’t want to go to a home that doesn’t have a pool or video games). The court will also make sure the child hasn’t been negatively influenced or “brainwashed” by the custodial parent. If the child doesn’t want to visit because the custodial parent has influenced the child to think badly of the non-custodial parent, the court may order visitation and order the custodial parent to refrain from making negative comments about the other parent.

Under what circumstances will a court consider the complete termination of parental rights?

The termination of parental rights severs all legal ties between the parent and the child, including custody and visitation rights. Because visitation rights are strongly protected, this harsh outcome is reserved for the most extreme cases.

To terminate parental rights, a petition (application) must be filed with the court. The overriding question will be whether termination is in the best interests of the child. The person or agency seeking to terminate parental rights must prove all of the following:

  • the child's health and development have been or will continue to be endangered by the parent
  • the parent is unable or unwilling to eliminate the harm facing the child, or unwilling or unable to provide a safe and stable home for the child
  • attempts have been made to correct the circumstances; and
  • termination will not do more harm than good.

In most cases, applications to terminate parental rights must be made by Division of Family Development. See N.J.S.A. 30:4C-15.1.

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