In any custody dispute, a variety of factors must be considered by a court in order to determine what is in the best interests of the child. It is the public policy of the State of New Jersey to assure children have frequent and continuing contact with both parents and to encourage that they both share the rights and responsibilities of child rearing.
Courts distinguish between legal custody and physical custody. Legal custody refers to a parent’s right to consultation regarding major decisions affecting the child’s heath, education, and general welfare. Physical custody refers to the actual residence of the child. In determining same, the granting of parenting time to the other party is an important consideration.
In making an award of custody, the court is empowered to consider the following factors:
- The parents’ ability to agree, communicate and cooperate in matters relating to the child.
- The parent’s willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse.The interaction and relationship of the child with its parents and siblings.
- The history of domestic violence if any.
- The safety of the child and the safety of either parent from physical abuse from the other parent.
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child’s education.
- The fitness of the parents.
- The geographical proximity of the parent’s homes.
- The extent and quality of the time spent with the child prior to or subsequent to the separation of the parties.
- The parents’ employment responsibilities.
- The age and the number of children.
In a typical situation, the parties will enjoy joint legal custody. Instead of the custodial parent making all decisions, a joint legal custody arrangement allows both parties to actively participate in the child’s life and make important decisions after mutual consultation. Regardless of the residential custodial plan, joint custody allows both parents to be responsible to make joint decisions regarding important decisions affecting their child such as health, education, and general welfare. Both parents are entitled to equal access to medical and academic records as well as contact with any professional involved in their child’s life. Decisions concerning school, medical concerns and religious upbringing are to be made by both parents and not to the exclusion of either.
If one parent is granted residential custody of the child, the child will reside with that parent subject to the other parent’s parenting time. The parenting time is a significant decision to be made in any custody dispute. Parenting time can consist of alternating weekends and time during the week or it can actually be a shared residential custody relationship. In such cases, the parents can equally share custody by alternating weeks or by alternating weekends as well as dividing up weekdays on an equal basis.
It is vital to discuss with your attorney what custody arrangement works best for the children. Frequently, custody plans must be submitted to the court during the course of a custody action. These are detailed presentations proposing a custody and parenting time relationship with the child including the division of holidays and vacations. Visitation plans must be realistic and must revolve around work and school schedules, the activities of the child, the distance between the parties as well as any need for child care. It is important to discuss with a seasoned and experienced attorney the various options available in any custody case.
If custody is an issue, the court may require the parties to attend mandatory custody/parenting time mediation. This mediation is scheduled in the courthouse with court personnel. The mediation sessions are conducted in order to determine whether a custody and parenting time plan can be agreed upon between the parties without additional court intervention. If such a plan is successfully reached with the assistance of the mediator, a formal order is prepared and forwarded to the attorneys representing the parties for their consent before it is sent to the judge to be signed and become a binding court order. If the custody/parenting time mediation is unsuccessful, the matter will be returned to court and will proceed as a contested custody action.
The court may then require a Best Interests Evaluation to be conducted by the county probation department. The court can also order an extensive evaluation to be conducted by a licensed psychologist. During the course of any such evaluation, the psychologist will interview the parties and the children, if of sufficient age. The parties will be required to undergo psychological testing. After considerable interviewing, testing, and evaluating, the psychologist will prepare a report to be submitted to the court which can be used to provide guidance for an appropriate determination of custody and parenting time.
If one party is dissatisfied with the results of the evaluation, a hearing will be conducted whereby testimony and evidence is presented to the court. If finances are limited, and a full custody evaluation cannot be performed, the court can order a Custody Neutral Assessment to be performed whereby each party is interviewed by a professional on a limited basis and an abbreviated report is provided to the court for consideration. These assessments are not as in depth as a full custody evaluation performed by a psychologist but they are helpful in providing the court with information concerning the dynamics of the situation and the manner in which custody may be resolved.
Children with Special Needs
Because Mr. Goldblatt also handles Social Security Disability cases, he is familiar with children who may suffer from impairments that require special needs in deciding custody and parenting time. Frequently, a disability on the part of a child may present issues that call for the child to remain in a certain school setting or to remain in a certain residence with one of the parents. IEP’s and child study team information may be obtained in order to get a better understanding of the actual needs of the child. If there are medical and/or mental health issues that must be considered in determining custody, it is important to have an attorney who is able to present your position as completely as possible.
Post Judgment Applications
Frequently, after divorce or custody cases are resolved, there may be a need to either make or defend a post judgment modification application. Over time, circumstances may change that require custody relationships to be modified. As a child gets older, he or she may wish to change residences and live with the other parent. If both parties agree, a consent order can be prepared and submitted to the court. If one party disagrees, the matter must proceed by application to the court. The party seeking a change in custody must prove a substantial change in circumstances since the original award was entered. There may be a change in the child’s school performance. There may be a change in the child’s medical condition. There may be a change in one parent’s ability to continue to parent effectively and be fit to remain the custodial parent, or a child, of age, may simply wish to move in with the other parent.
If you are seeking a modification of a custody award or attempting to defend such an application, it is important to speak with an experienced custody attorney. Mr. Goldblatt has handled many custody issues. He has resolved such issues by mediation or through litigation. Contact him today in order to determine your best options and how to proceed in order to obtain a satisfactory result for you and your child.
Relocation From the State of New Jersey
If either parent wishes to relocate from the State of New Jersey, the consent of the other parent is required. If consent cannot be obtained, the party wishing to relocate must then make an application to the court for permission. The leading case of Baures v. Lewis, provides a road map as to how a court is to approach any such relocation issue and the factors to be considered. In order to establish sufficient cause for the removal of a child from the State of New Jersey, the custodial parent must initially show there is a real advantage to that parent for the move and that the move in not inimical to the best interests of the child. If these threshold requirements are met, the court will then consider, based on evidence provided by the parties at a hearing, other factors to determine whether the custodial parent shall be permitted to remove the child. Such factors are:
(a) the prospective advantages of the move in terms of its likely capacity for either maintaining or improving the general quality of life of both the custodial parent and the child.
(b) the integrity of both the custodial parents’ motives in seeking to move.
(c) the noncustodial parent’s motives in seeking to restrain such a move.
(d) whether a realistic and reasonable visitation schedule can be reached if the move is allowed.
In determining whether such a reasonable visitation schedule can be reached, the court can consider distance, time and financial restraints. Whether the parent requesting the move shows good faith for the move and that it will not be inimical to the child’s interests, the court may consider the following:
1. The reasons for the move.
2. The reasons for the opposition for the move.
3. The past history of dealings between the parties.
4. Whether the child will receive educational, health and leisure opportunities at least equal to what is available in New Jersey.
5. Any special needs or talents of the child that require accommodation and whether such accommodations are available in the new location.
6. Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child.
7. The likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed.
8. The effect of the move on extended family relationships here and in the new location.
9. If the child is of age, his or her preference.
10. Whether the child is entering his or her senior year of high school.
11. Whether the noncustodial parent has the ability to relocate.
12. Any other factor bearing on the child’s interest.
Whether you are requesting the move or are opposing the move, it is important to speak with knowledgeable counsel in order to adequately prepare a case to support your interests. Contact the Law Offices of Jeffrey W. Goldblatt today for a consultation regarding any relocation matter.