Establishing Custody Orders in New Jersey

Posted May 20, 2020

  • Establishing Custody Orders in New Jersey

In the State of New Jersey, it is a well-established principle that the “primary and overarching consideration” for Courts in making a decision with respect to child custody is the best interests of the child. Generally speaking, it is in a child’s best interest to have both parents involved in the child’s life to the greatest extent possible. In New Jersey, custody rights and obligations are broken down into two components: (1) legal custody; and (2) physical custody.

Legal custody refers to a parent’s authority and responsibility in making major decisions related to the child. These major decisions involve the child’s health, education, and welfare. In the vast majority of cases, both parents will share joint legal custody, allowing them to communicate and work together to make significant decisions for their child.

Physical custody generally refers to a person’s authority and responsibility to provide for a child’s physical care, daily needs, and supervision. The party with lawful physical custody over a child is responsible for making minor, day-to-day decisions while the child is in their care. Accordingly, during the period which a parent is exercising parenting time, that parent is generally given deference when making such decisions for the child.

Courts prefer an award of joint legal and physical custody which ensures that both parents are involved in the child’s life. However, in cases where parents cannot amicably reach a custody and parenting time arrangement, Courts are guided by the best interests of the child standard referenced above. This standard has been set forth to protect the “safety, happiness, physical, mental and moral welfare of the child.”

When making a custody determination, Courts are required to examine, at a minimum, fourteen factors which are set forth in N.J.S.A. 9:2-4. Those factors are as follows:

1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
3. The interaction and relationship of the child with its parents and siblings;
4. The history of domestic violence, if any;
5. The safety of the child and the safety of either parent from physical abuse by the other parent;
6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
7. The needs of the child;
8. The stability of the home environment offered;
9. The quality and continuity of the child’s education;
10. The fitness of the parents;
11. The geographical proximity of the parents’ homes;
12. The extent and quality of the time spent with the child prior to or subsequent to the separation;
13. The parents’ employment responsibilities; and
14. The age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

In addition to the factors listed above, which represent the minimum which must be considered, Courts will also review any other factors deemed relevant to the best interests of the child standard. Each case that comes before the Court is different and the Court will weigh the totality of the circumstances in deciding a custody arrangement. If you have any questions with regard to this blog, please contact my office.

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