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It is public policy of New Jersey to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing. In order to effect this policyboth parents of a child are entitled to frequent and continuing contact with that child in order to ensure a strong parent-child relationship. Parents have a constitutional right to the care, custody, and control of their children. In New Jersey custody law in any proceeding involving the custody of a minor child, the rights of both parents shall be deemed equal. However, there is no presumption of equal timesharing. Ultimately, the custody and parenting determination will be made based upon the best interests of the child.
In fact, the overriding principle when determining custody is the best interests of a child. There two categories of custody, legal and physical. Legal custody refers to the authority of a parent to make major decisions concerning a child’s health, safety, education, and welfare. Physical custody refers to the actual residency of the child. There are three major arrangements involving legal and physical custody determinations: (1) sole legal and physical custody; (2) Joint legal custody with one parent being the parent of primary residence, or custodial parent; and (3) Joint legal and physical custody with both parents having equal parenting time with the child. Sole legal custody involves one parent having sole decision making authority and sole physical access to the child. This is not very common. Joint legal custody with one parent as the primary custodian is the most common arrangement and involves both parents sharing legal custody, although the child resides with one parent more often than the other parent. In such situations, the parent having the greater share of physical custody is referred to as the parent of primary residence (“PPR”), or custodial parent, while the other parent is referred to as the parent of alternate residence (“PAR”), or non-custodial parent. The non-custodial parent’s physical custody of the child is often referred to as his or her parenting time (the term “visitation” has fallen out of favor) with the child. The third arrangement involves shared joint legal and physical custody.This is where both parents have legal custody and physical custody is equally shared between the parties. Of course, there are many variations of the custodial arrangements addressed above.
When determining what custody arrangement is in the best interests of a child, the courts must analyze custody issues (including the child’s best interests) in the context of certain statutory factors, although the court is not limited to consideration of these factors only. These factors are as follows:
(a) the parents’ ability to agree, communicate and cooperate in matters relating to the child;
(b) the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
(c) the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any;
(d) the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
(e) the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education;
(f) the fitness of the parents; the geographical proximity of the parents’ homes;
(g) the extent and quality of the time spent with the child prior to or subsequent to the separation;
(h) the parents’ employment responsibilities;
(i) the age and number of the children.
N.J.S.A. 9:2-4.
In all family actions in which the court finds that either custody of children or parenting time issues, or both, area genuine and substantial issue, the court must refer the matter to mediation. Similarly, where the court finds that the custody of children is a genuine and substantial issue, the court must conduct a hearing on the issue of custody within six months of the filing of the last responsive pleading of a party. When determining custody or parenting time issues, the court may, at its discretion, interview the child at issue. In addition, the court may appoint a custody mental health expert to conduct an evaluation, usually including interviewsof the children and the parties, and thereafter issue a report to the court as to the best interests of the child. The report must consider the statutory factors. Each party may also retain their own custody experts, or may choose to jointly retain one custody expert, to act in the same manner as the court appointed expert.
Custody and parenting time orders are always subject to modification by the courts. To modify a custody or parenting time order, the party seeking the modification must demonstrate a change in circumstances whereby modification of the existing custody arrangement is in the child’s best interests.Orders concerning custody and timesharing are subject to modification upon the showing of a change of circumstances that would affect the welfare of the child. The party seeking the modification bears the burden of demonstrating a change of circumstances so as to require modification. In the end, all determinations regarding children involved in the divorce process must be made with their best interests as the primary goal.