New Jersey Custody: Modifying Custody and Enforcing Visitation

Learn about modifying a custody order in New Jersey, relocating with a child, visitation rights, and more.

By , Retired Judge

Can Parents Change Custody Arrangements in New Jersey?

As with virtually all court orders involving minor children, custody orders in New Jersey are subject to modification. As children age, their needs change. An arrangement that worked well for a very young child might not work as well as that child gets older.

In addition, circumstances might change over time for one or both parents. The guiding principle in any custody-related matter is whether the arrangement is in the best interests of the child. (Part 1 of this article discusses the meaning of "best interests of the child", as well as the different types of custody in New Jersey.)

The easiest and best way to change a custody arrangement is for parents to come to an agreement. But it's important to get court approval for agreed upon changes, otherwise you might have difficulty enforcing the new agreement if either parent violates its terms. And keep in mind that the court isn't obligated to go along with the changes if the judge believes they're not in the child's best interest.

If you want to change your custody arrangement but the other parent won't agree, you'll need to go to court. You do this by filing a "motion" (written legal request). But be advised that a court won't change the existing arrangement just because you ask. You have to prove to the judge that there's been a "substantial change of circumstances" since the most recent custody arrangement took effect. There are any number of scenarios that could qualify. For example, one of the parents may have relocated, or a parent has become addicted to drugs and isn't able to provide a safe environment for the child.

When you file a motion for modification of a custody order, the court screens it to determine whether the issue presented is genuine and substantial. If it is, then the court will send the parents to mediation, in an attempt to settle the disagreement. (N.J. Court Rules §1:40-5.)

If mediation is unsuccessful, there will likely be a hearing at which the judge will listen to the relevant evidence both for and against the requested change. The court will then make a decision to grant or deny the motion.

Can a Custodial Parent Move Out of New Jersey With a Child?

Under New Jersey law, moving a child out of state usually requires permission from the other parent or the courts. For years the courts made it fairly easy for a custodial parent (the one whom the child primarily lives with) to move out of state with a child. Basically, all you had to do was show that there was a legitimate reason for the move, and that it wouldn't adversely affect the child. But that has changed.

In 2017, the New Jersey Supreme Court ruled that the fairest way to decide the issue of removing a child from the state is to apply the same standard used in determining custody matters in general—what arrangement is in the best interests of the child. The court further stated that the "best interests" standard should be applied in all cases where parents have "joint legal custody", regardless of which parent the child primarily resides with. (Joint legal custody exists when the custody arrangement gives both parents an equal right to participate in making major decisions regarding the child, such as education, medical treatment, and religious training.)

In effect, the Court said that even if a parent's desire to move is legitimate, that has to take a back seat to the child's best interests. And the fact that relocation wouldn't harm a child doesn't necessarily equate with what's best for that child.

To learn more about child custody in move away cases, see Child Custody and Relocation Laws in New Jersey.

Are There New Jersey Child Visitation Guidelines?

What used to be known as "visitation" is now more often referred to as "parenting time". It relates to the amount of time the non-custodial parent gets to spend with the child. New Jersey law staunchly protects parenting time rights. State policy is geared toward giving minor children frequent and continuing contact with both parents. Courts strongly urge parents to work out a parenting time schedule, either on their own or with the help of a trained mediator. If they can't, then each will have to submit a proposed schedule to the court for review.

Judges don't have to choose one schedule or the other, but rather will take all the circumstances into consideration, and ultimately carve out a plan they feel serves the best interest of the child. (N. J. Court Rules §5:8-5.)

When it comes to parenting time, New Jersey doesn't provide a menu of potential schedules to choose from. The reality is that there are as many variations as parents can come up with. Not that long ago, the prevailing parenting time template was that the non-custodial parent would have the child overnight every other weekend, and spend time with the child one evening per week. There would be extended vacation time, and the parents would alternate holidays. Although that's still a possible arrangement, the emphasis on increased interaction between the non-custodial parent and the child has led the way to more flexible scheduling. In fact, there's been an increase in joint (shared) residential custody, where children spend two or more overnights per week with each parent.

The success of any parenting plan depends on the parents' recognition that cooperation and communication are crucial to their children's physical and emotional well-being. If that doesn't exist, there's a likelihood of the need for continuing court intervention. Not only is this detrimental to the children's stability, but it's time-consuming, anxiety producing, and costly (think attorneys' fees) for the parents.

Can Anything Be Done if a Parent Violates a Parenting Time Schedule?

A common problem with parenting time is that a parent fails to comply with the established schedule. Remember that parenting time schedules ultimately become court orders, either in and of themselves or by incorporation into a divorce judgment. So violating them is serious business.

In cases where there are infrequent lapses, the parents should attempt to talk things out. If a parent isn't going to be able to abide by the schedule on a particular occasion, the best thing to do is notify the other parent as far in advance as possible. But if violating a parenting time schedule becomes a chronic problem, then a court may need to intervene.

Under N.J. Court Rules §5:3-7, if a court finds that a parent has violated a custody or parenting time order, in addition to other remedies the court can impose one or more of the following penalties:

  • compensatory time with the children
  • economic sanctions, including monetary compensation for the costs resulting from a parent's failure to appear for scheduled parenting time, such as child care expenses incurred by the other parent
  • modification of transportation arrangements
  • pick-up and return of the children in a public place
  • counseling for the children and/or the parents at the expense of the parent in violation of the order
  • temporary or permanent modification of the custodial arrangement, provided such relief is in the best interest of the children
  • participation by the delinquent parent in an approved community service program
  • incarceration, with or without work release
  • issuance of a warrant to be executed upon the further violation of the judgment or order, and
  • any other remedy the court feels is fair.

Note also that if one parent interferes with the other's custody or parenting time, that parent can be subject to criminal prosecution. (N.J.S.A. 2C:13-4.)

What Is Supervised Visitation in New Jersey?

Supervised visitation means a parent must be monitored when meeting with the child. A court may find it appropriate to order supervised parenting time where there's been a history of child abuse, medical disabilities, psychiatric problems, or other issues that may jeopardize the child's safety and welfare. (N.J.S.A 2A:12-7.)

As for who serves as a supervisor, a lot depends on the reason the court ordered supervised visitation. For example, if a child is a toddler, and the parent has a medical disability that restricts physical movement, you'd want to make sure the child doesn't run off. In that case, you could have a family member or friend act as the supervisor in the disabled parent's home.

But if the parent has anger issues that could potentially harm the child, you'd want parenting time to take place in a safe and secure environment, overseen by individuals trained to deal with these types of situations.

The New Jersey legislature enacted the Supervised Visitation Program, which provides for court-ordered supervised parenting time conducted by approved community organizations which supply facilities and personnel. It's up to a judge to determine whether to require this in a particular case. (N.J.S.A 2A:12-12.) If you're interested in supervised parenting time, you can contact the Family Division at your county courthouse for more information.

Can a Child Refuse to Visit With a Parent in New Jersey?

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 parenting time. A court will have to carefully balance parenting time rights against the child's preference.

The age of majority in New Jersey is 18. For a child younger than that, when it comes to parenting time (and custody) matters the court will take into account "the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision". That's the language used in N.J.S.A. 9:2-4 (c). It's kind of a nebulous phrase, but in practical terms it more or less comes down to a child's level of maturity.

As a rule of thumb, the older the child, the more weight the judge will give to the child's request. But again, that's not set in stone, because there are some twelve-year-olds who can be more level-headed than some fifteen-year-olds. The decision has to be made on a case-by-case basis.

In addition to taking the child's age into consideration, the court will also dig into the reasons why the child is reluctant (or outright refusing) to spend time with the non-custodial parent. The court will want to make sure the custodial parent hasn't negatively influenced or "brainwashed" the child, or that the child isn't being "bought off" with promises of gifts or other such inducements.

As always, in the end a judge is going to do what's in the child's best interest. If the court feels it's necessary to get some additional assistance in making that determination, it can order that the child and/or the parents be examined by a health or mental health professional. (N.J Court Rules §5:3-3(b).)

What Is an "Unfit" Parent?

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
  • are of such vicious, careless, or dissolute habits as to endanger the child's welfare. (N.J.S.A. 9:2-9.)

In that case, anyone who is interested in the child's welfare can file an action with the Superior Court, Family Part, to ask a judge to address the situation. This can include placing the child in someone else's care. (N.J.S.A. 9:2-10.)

Can a Court Terminate a Parent's Rights?

The answer is yes, but you'll only see this in the most extreme cases of parental misconduct. The termination of parental rights severs all legal ties between the parent and the child, including custody and parenting time rights. Normally, the New Jersey Division of Child Protection and Permanency (DCP&P) files a formal application with the court to terminate parental rights.

The overriding question will be whether termination is in the best interests of the child. For the termination application to succeed, there must be proof that:

  • the child's health, safety, and development have been or will continue to be endangered by the parental relationship
  • 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 the court has considered alternatives to termination of parental rights, and
  • termination will not do more harm than good. (N.J.S.A. 30:4C-15.1.)

For more information about how custody and parenting time are determined in New Jersey, see New Jersey Custody and Visitation Rights: Part 1

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