Types of Custody in a New Jersey Divorce
The question of "Who gets custody of the
kids?" is one of the most difficult decisions for parents and their
children, when parents separate. Custody and visitation are the legal terms
for court decisions about how the child will spend his/her time between
parents (or others). Custody and visitation are never considered to be
final. As situations change, parents can come back to court to request
In New Jersey, the law does not favor either the
mother or father. The law looks at the relationship of each parent with the
child. While grandparents and others may seek custody, there is a
"presumption" in favor of the natural parents. This means that the
court is more likely to favor the natural parents.
This section is designed to give you general
information on how courts decide custody and visitation rights in New Jersey.
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Custody: What does the word
Temporary Custody -
"De facto" (means "in
fact") custody refers to who actually has custody of the child at this
time. This can be different from "court ordered custody". In order to
formalize custody before you begin litigation, you will need to file for
temporary custody. Temporary custody will be based on the "best
interests" of the child standard. It is not an "initial"
award of custody. Instead it is temporary custody while you wait for the court
to hold a hearing.
Sole Custody -
Custody is made up of: legal custody and
physical custody. A person with legal custody has the right to make long range
plans and decisions for the education, religious training, discipline,
non-emergency medical care and other matters of major significance concerning
the child's welfare. A person with physical custody has the child living
primarily with them and they have the right to make decisions as to the child's
everyday needs. Sole Custody is when both legal and physical custody are given
to one parent. The child has only one primary residence.
- Split custody is easiest to describe in a
situation where there are two children and each parent obtains full physical
custody over one child. Some of the considerations that may bring about this
result are age of the children and child preference.
Joint Custody - Joint
Custody is actually broken down into three categories: Joint Legal, Shared
Physical, and Combination.
- Joint Legal custody is where the
parents share care and control of the upbringing of the child, but the child
has only one primary residence.
- In Shared Physical Custody the
child has two residences, spending at least 35% of their time with the other
- Additionally, you can make your own
special joint custody agreement that is any combination of Shared
Physical and Joint Legal Custody. One example of this is when there is one
residence for the child and the parents live with the child there on a
The court looks very closely at Joint Custody
agreements. The most important factor to Joint Legal Custody to Shared Physical
Custody is the ability of the parents to talk about and reach joint decisions
that affect the child's welfare. If you are constantly fighting over what
religion or what school, the court may strike down your agreement.
Other factors include:
- willingness to share custody;
- child's relationships with parents;
- child's preference;
- ability to stabilize child's school and social
- closeness to parent's homes (primarily a
factor during the school year) ;
- employment considerations (e.g. long hours,
extensive travel, etc.);
- age and number of children;
- financial status;
- benefit to parent.
Additionally, the sincerity of the parties
involved is important. The court will want to make sure that joint custody isn't
being traded for concessions on other points. Another consideration is whether
the grant of joint custody will affect any assistance programs. Currently,
Welfare and Medical Assistance are affected based on the award of Joint
Legal Custody. Be sure to check with your contact at any social service agencies
before entering into an agreement or you may be jeopardizing your benefits. This
list is not meant to be complete and the court will hear anything that they
believe to be relevant.
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