Children In Divorce — Custody

The law's touchstone for child custody is of course the "best interests of the child." Children are vulnerable and unable to take care of themselves, or look out for their own interests. Hence the priority. The court will act in place of the parents to ensure their safety and best interests if needed.

Children's Needs

Children not only need a roof over their heads and three meals a day, but much more than that. They need emotional support, and environment that makes them feel safe, and being provided with guidance, education and economic resources for their optimal development. While sole custody was once routinely awarded to mothers, this is rare in this day and age. Today, the courts look to many factors that prioritize the needs of children. Today, there is no presumption of custody based on gender and there is a presumption of joint legal custody unless there are factors that warrant one parent having sole legal custody. This, for example, may occur in cases where a parent has serious substance abuse or alcohol or mental health problems that would prevent co-parenting.


"Physical custody" refers to where the child primarily resides, eats, sleeps. "Legal custody" is the right to make important decisions for the child, relating to education, health care, religious upbringing if any, etc. If two parents share joint legal custody, they must consult with and get approval for major decisions, such as non-emergent medical procedures, change of schools, or moving out of state, to name a few. Consent is not to be unreasonably withheld by either parent. If it is, then the court must make the decision. If the court decides that consent was unreasonably withheld, it may award attorney's fees to the parent who was forced to go to court.

You should have reasonable and consistent access to maintain a close relationship with your child. Physical custody can be shared. One party may have primary residential custody or in some (rare) cases, sole custody and the other regular visitation rights. Most often, the parties share joint legal custody and one parent is deemed to be "Primary Parent of Residence" (PPR). The other parent with whom the child resides less often, is deemed to be the Parent of Alternate Residence (PAR). Sometimes the school system requires one parent to be designated PPR just for the purposes of busing. The important thing is the amount of time, consistency and the quality of the time spent with the child.

The parent having primary residential custody (as opposed to legal custody) makes the daily, routine decisions for the child, without necessarily consulting with the other parent. This includes things such as haircuts, routine physical exams and inoculations, play dates, etc.

Most frequently, divorcing spouses continue to live close enough to share residential custody. Visitation (now called parenting time by the courts) proceeds with a schedule devised by the consent of the parties, by a parenting time mediator, or by the court.


Unfortunately, child custody is probably the most contentious (and legally expensive) issue in any divorce. Parties are advised to demonstrate to the court that they can cooperate and put the child's welfare ahead of pettiness and bitterness. It is essential that regardless of how each of the parents feel about the other, that the children be encouraged to maintain a loving relationship with their other parent, and that they have reasonably free access to the other parent. They need to know that this is ok with you and that you will not be hurt, upset or angry if they express love for their other parent as well as for you.

Most divorces do not require a trial. If you can work out a settlement out of court, you will save time and money. The judge does not know you, your priorities or your family as well as what you do. The court urges all divorcing or litigating parties to settle. If the parties cannot do this, the court will make the decisions for you.

While we encourage negotiation and settlement, we are resolute when we need to be. This is because we represent you and only you, although we are obligated to advise you that your children cannot be placed at risk of harm, and we will guide you through whatever process is necessary if your children are in danger. Your long-term satisfaction with the outcome can largely be determined by how things are handled now.


Should your circumstances, or those of your child or ex-spouse, a legal modification of the original custody or parenting time order may be warranted. Regarding children, their best interests can change through the years, and no agreement regarding children is unchangeable. Tell us about your situation.

From our main office in Teaneck, we can guide clients through the process as it relates to serious concerns such as grandparent visitation or allegations of child abuse. Learn more about the representation an experienced New Jersey, family law lawyer can offer in custody disputes by contacting Law Offices of Jonathan D. Gordon, Esq., LLC, online or by calling 201-546-5772.