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 need a roof over their heads and three meals a day, but much more than that. They need emotional support, guidance, education and economic resources for their optimal development. While sole custody was once routinely awarded to mothers, there are more options today, recognizing 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 substance abuse or alcohol or mental health problems that would prevent co-parenting.
Options
"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. 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 hair cuts, 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 parties, by a mediator, or by the Court. 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.
Contention
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.
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 you do. The Court urges all divorcing or litigating parties to settle. If the parties cannot do this, the Court will make the decision.
While we encourage negotiation and settlement, we are resolute when we need to be. This is because we represent you and only you. Your long-term satisfaction with the outcome can largely be determined by how things are handled now.
Modification
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. Tell us about your situation.
Learn more about the representation an experienced New Jersey, family law lawyer can offer in custody disputes by contacting us online or by calling 201-546-5772.
