Written By: Lawrence R. Jones, Esq.

When parents of a child permanently separate or file for divorce, the Court must often decide issues of custody and parenting time.

In New Jersey, there are gen­erally two types of custody: (1) residential custody and (2) legal custody. Residential custody generally refers to the parent with whom the child primarily resides. A court may declare one parent the primary residential custodian (PPR), while naming the other parent as the parent of alternate residence (PAR). The PAR usually receives the right to spend time with the child on a scheduled basis for parenting/ bonding time (formerly referred to as “visitation”).

In some cases the Court orders shared residential custody where the parties each spend approximately 50% of the time with the child. However, this type of schedule is rare unless (a) the parties agree to such a schedule and (b) the parties live very close to each other so as to accommodate a “back and forth” schedule successfully.

Legal custody refers to the parent who makes the major decisions on behalf of the child. In New Jersey, there is a strong public policy favoring joint legal custody. This means that regard­less of who is the residential cus­todian, courts commonly award both parents joint legal custody. As joint legal custodians, both parties have the right to par­ticipate in major decisions in he child’s life such as significant medical decisions, educational decisions, and social decisions.

In some cases a Court will award sole legal custody to one parent. This is unusual but is more likely to occur in cases where a parent is irresponsible or unfit, or where the parties’ ability to communicate with each other is so impaired that an award of joint legal custody would be counterproductive to the child’s best interests.

On the issue of parenting time, Courts have discretion to put certain restrictions or condi­tions on such time. For example, a judge can order that Parenting time be supervised if there is evi­dence that the parent is neglect­ful, abusive, or otherwise in need of supervision. Courts also have the discretion to put restraints on parties such as prohibiting smoking in a child’s presence, restricting drinking during parenting time, or in some cases prohibiting a parent form having a boyfriend or girlfriend sleep overnight while the child is present. The Family Court judges have significant discre­tion in addressing these issues and fashioning orders on a case-by-case basis to protect the best interests of the child.

Custody litigation often involves expert witnesses. The Court may appoint a psychiatrist or psychologist to interview the parents, the child and other indi­viduals and to conduct a forensic custody evaluation for the pur­pose of offering an expert opin­ion to the Court on the issues presented.

If a domestic vio­lence restraining order is in place, the victim may be entitled to a rebuttable presumption of custody. If there is no restraining order in place, Then a court may require the parties to attempt mediation of their dispute under New Jersey Court Rule 1:40, et seq. Mediation is generally confidential and non-binding, as has successfully helped to resolve many disputed custody cases prior to trial. Some cases, how­ever, do not resolve and require a full trial.

Pursuant to N.J.S. 9:24, in making a custody determination a Court shall consider but not be limited to the following fac­tors: the parties ability to agree, communicate and cooperate on matters relating to the child; the parents’ 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 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; 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 parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to separation; the parents’ employment respon­sibilities, and the age and num­ber of children.

The law office of Lawrence R. Jones, Esq. is knowledgeable on all family court matters. Call us at 732-818-1965