Child Custody Laws in New Jersey Divorce

What is child custody?

There are always two kinds of custody at stake when parents split up. “Legal custody” is the right to help make major decisions on behalf of the child in important medical, educational, religious, and cultural matters. Having legal custody also ensures that a parent has a right to access vital information—like educational and medical data—about a child.

Physical custody, on the other hand, simply refers to where the child will live. It is a label that can be confusing and upsetting to people who don’t realize that it has a limited meaning. A parent with physical custody is simply the parent who lives in the place where the child will spend the most time.

The parent who spends a lesser percentage of time with the child does not have physical custody, but will be entitled to spend time with the child according to a visitation schedule written in a court order. This is true regardless of the percentages. One parent might have the child for 51% of the time, while the other has the child for 49%. As a practical matter, the child is living equally with both parents, but technically and legally, the parent who is with the child for 51% of the time has physical custody.

Additionally, legal and physical custody can be joint or sole. “Joint” custody is shared by both parents, while “sole” custody belongs only to one parent.

Split custody arrangements are common. It is quite ordinary for two parents to share joint legal custody of a child, whereas as far as physical custody goes, one has sole physical custody and the other has a generous amount of visitation set out in a visitation plan.

Is custody decided during New Jersey divorce proceedings?

Yes. New Jersey’s superior courts (trial courts) have “jurisdiction” (authority) to issue court orders that decide a child’s education, custody, and financial support when the child’s parents are separated or divorcing.

If you are divorcing, the judge will make a final custody and visitation decision, but first will issue a temporary order intended to last through the court proceedings, so that your children have some stability during a difficult time.

If you and your child's other parent were never married, but have now separated, you can still seek custody orders from a family law court through a child custody proceeding.

The State of New Jersey’s goal is to ensure that all children whose parents are divorced or separated can spend “frequent and continuing” time with both parents. Both parents have equal rights and the State encourages both parents to work together to share their duties as parents.

Can we go to mediation?

Yes, you will have that opportunity before trial. Anytime the superior court learns that custody is a major issue in a divorce, the judge will refer the case to mediation. If mediation doesn’t work, then the county probation officer may (but does not have to be) assigned to investigate, write a report, and make recommendations about who should have custody.

How does a New Jersey judge decide who gets custody?

In New Jersey, judges are required to make custody decisions that are in a child’s best interests. It doesn’t matter what the adults want, or what’s most convenient. The guiding consideration is always the child’s best interests.

In many cases, parents are able to agree on who will have custody of their children. They can decide where the child should live and go to school, how much time the child should spend with each parent, and establish a schedule for visitation. As long as the parents’ agreement is in the best interests of the child, the judge must approve it.

Often, however, parents can’t agree on these very sensitive questions. When there isn’t an agreement, custody of a child is decided following a hearing in superior court. Before the hearing, the parents are required to provide the court with a copy of the custody and visitation plan they believe is in the child’s best interests. The judge will consider these carefully, but doesn’t have to follow them.

At the hearing, the judge will listen to testimony, evidence, and arguments from both sides. After the hearing, the court will issue a written order explaining where the child will live, what the schedule will be, and the basis for the court’s decision. The order will include a visitation schedule. The judge’s decisions must be based on a legal analysis of each of the following questions:

  • Can the parents agree, communicate, and cooperate in matters involving the child?
  • Are the parents willing to accept custody? Do either of them have a history of unwillingness to allow visitation without a very good reason, like substantiated abuse?
  • What is the interaction and relationship of the child with all parents and siblings?
  • Is there a history of domestic violence involving either or both parents?
  • Is the child safe from physical abuse by the parents? Are the parents safe from each other?
  • If the child is old enough to form an intelligent, reasonable decision, what is the child’s custodial preference?
  • What are the child’s needs?
  • What is the stability of the home environment each parent can offer?
  • What is the quality and continuity of the child’s education?
  • What is the parents’ fitness to have custody?
  • How close do the parents live to one another?
  • How much time did the child spend with each parent before and after the separation? Was it good, quality time?
  • What are the parents’ employment responsibilities?
  • How many children are there, and what are their ages?

My kids want to talk to the judge. Can they?

Maybe. Before trial starts, either parent can request that the judge interview the children about custody. If neither parent asks, the court can order it anyway.

The judge doesn’t have to interview children, and won’t if the interview would be hurtful or damaging to them. If the court decides not to conduct an interview, the judge will go on the record in the courtroom (meaning, the judge will speak in the presence of a stenographer, or court reporter, who is writing everything down) and explain why.

If the judge does decide to talk to a child, the interview will often be held privately, in the judge’s chambers. The judge will ask questions submitted to him by both sides, unless the questions would hurt the child. The court may also ask additional questions of its own. Both sides are entitled to transcripts of the interview. Neither parent is allowed to reveal or discuss what the child said in the interview.

Will a parent’s adultery affect the judge’s custody decision?

Some people assume that if they committed “marital misconduct" or bad acts, such as adultery, which caused the marriage to be broken beyond repair, then the courts will punish them by deciding they are unfit parents and depriving them of custody of their children. But New Jersey’s courts have consistently found that marital misconduct such as adultery, standing alone, isn’t enough to cause a parent to lose custody. On the other hand, if one parent's misconduct consisted of physical abuse of the other parent, that will certainly have an impact on the judge's custody determination. The key point is that the court must always act in the best interests of the child, regardless of why the parents are no longer romantically involved.


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