Child custody in New Jersey: how judges decide and what to expect

Legal custody vs. physical custody

Custody in New Jersey has two parts. Legal custody is about decision-making: major choices about the child's health care, education, religion and similar issues. Physical custody is about where the child lives and how time is divided between homes.

Joint legal custody is the usual outcome. Parents consult on major decisions, while day-to-day decisions are generally made by whichever parent the child is with. For living arrangements, courts and lawyers often use the terms parent of primary residence (the parent the child lives with most of the time) and parent of alternate residence (the parent with scheduled parenting time).

Joint physical custody, where the child spends substantial time in both homes, is also possible. Sole custody, where one parent has both legal and physical custody, is less common and usually involves a parent who is absent or unfit, for example because of abuse, neglect or addiction.

The best interests factors in N.J.S.A. 9:2-4

When parents cannot agree, the judge decides based on the child's best interests. New Jersey's custody statute lists factors the court must consider. The list is not exclusive, so a judge can weigh other relevant facts too.

• The parents' ability to agree, communicate and cooperate about the child
• Each parent's willingness to accept custody, and any history of unjustified withholding of parenting time
• The child's relationship with each parent and with siblings
• Any history of domestic violence
• The safety of the child and of either parent from physical abuse by the other
• The child's preference, if the child is old enough and capable of making an intelligent decision
• The child's needs and the stability of the home environment
• The quality and continuity of the child's education
• The fitness of the parents
• How close the parents live to each other
• The extent and quality of time spent with the child before and after separation
• The parents' work responsibilities, and the age and number of children

Custody mediation

Under Court Rule 1:40-5 and Rule 5:8-1, when custody or parenting time is a genuine and substantial issue, the court refers the parents to mediation before a judge decides anything. Mediation generally lasts no more than two months unless the court extends it.

Mediation is not used in every case. There is no referral when a temporary or final domestic violence restraining order is in effect. If abuse is alleged without an order, the case may still be referred, but those allegations themselves are not mediated. Either parent or the mediator can ask the court to end mediation for good cause.

If mediation does not resolve things, the court can order an investigation by the Family Division, which can include a look at each home and criminal record checks, and in some cases evaluations by mental health professionals.

Parenting plans

If parents cannot agree on custody, Court Rule 5:8-5 requires each parent to file a custody and parenting time plan. It is generally due 75 days after the last responsive pleading, or 14 days after mediation ends without agreement.

A plan lays out the type of custody requested and why, and a specific schedule covering weeknights, weekends, holidays, school breaks, vacations and birthdays. It also addresses access to school and medical records, how the parents will share decisions, and what happens if a parent plans to move. Parents who agree can submit a joint plan, and the court will generally approve it as an order unless it is against the child's best interests.

Parent education and the court process

In a divorce where either parent asks for custody or parenting time, both parents must attend a parenting workshop, which costs $25 each according to the Judiciary. Custody can also be decided outside a divorce, for example between parents who were never married, through a separate Family Part filing.

Judges can enter temporary custody and parenting time orders while a case is pending. Custody orders can later be changed if there is a significant change in circumstances and the change is in the child's best interests.

Parenting time and the child's routine

In New Jersey, the time a child spends with each parent is called parenting time rather than visitation. Even when one parent is the parent of primary residence, the court generally wants the child to have frequent and continuing contact with both parents, unless that would put the child at risk.

Schedules vary a lot. Some families use alternating weekends with a midweek dinner. Others split time more evenly, such as a 2-2-3 rotation or alternating weeks, which tends to work best when parents live close together and communicate well. Younger children often do better with shorter, more frequent time with each parent, while teenagers' school, jobs and activities may shape the schedule.

Holidays, birthdays, school breaks and summer vacation are usually spelled out separately, often alternating by year. A detailed written schedule cuts down on arguments later. When parents can work together, many build in flexibility for trades and special events, while keeping a default schedule to fall back on when they disagree.

Courts generally expect both parents to support the child's relationship with the other parent. Speaking badly about the other parent in front of the child, or keeping the child from scheduled time without a real safety reason, can count against a parent under the best interests factors.

Grandparents and others

Grandparents and siblings can ask for visitation under N.J.S.A. 9:2-7.1, but they have to show that visitation is in the child's best interests, and New Jersey courts generally require proof that the child would be harmed without it. That is a high bar when the parents object.