How Do New Jersey Courts Decide Who Gets Custody of Children in Divorce?

It’s generally much better for children if divorcing parents can agree on arrangements for child custody and parenting time without involving the court. It’s also generally far less expensive.

Such agreements must provide for at a minimum:

1. Which parent will have physical or primary residential custody of the child, that is, where the child will live more than 50% of the time; and

2.  Whether or not both parents will have joint “legal custody.”  “Legal custody” means the ability to make the major decisions as to the health, education and general welfare of the child. 

In New Jersey, joint legal custody is the preferred arrangement.  It requires both parents be consulted with all major decisions affecting the health, education and general welfare of the child.

Successful joint legal custody arrangement requires that parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.

Court Process for Child Custody Decisions

While divorcing spouses are always free to reach an agreement on their own, once a divorce action has been initiated with the court, you and your spouse will be required to attend custody and parenting time mediation with the court mediator.  The mediator will help facilitate an agreement.

If an agreement is reached, the court mediator will draft a Memorandum of Understanding (“MOU”).  An MOU is a written non-binding agreement.

The mediator will send the MOU to the parties’ attorneys who will then incorporate it into a Custody and Parenting Time Consent Order.  Once the consent order is signed by both parties, it will be sent to the court to be signed by the judge and entered by the court as a binding order.

What if you are unable to reach an agreement in mediation or with the help of attorneys? 

First, the Court will designate a forensic psychologist to undertake an extensive child custody evaluation.   The child custody evaluation generally involves psychological testing of each parent, multiple interviews with each parent separately and with the child, and interviews with others involved with the family such as teachers or health care providers.

The child custody evaluator will typically generate a report to the judge hearing the case. This report will include all of their findings and recommendations regarding how custody should be awarded.

The custody evaluation can be very costly ranging from $10,000 to $20,000 or more, not including appearance in court or legal fees.  They can be extremely emotionally taxing not just for the parents but also importantly, for the children.

In the event of a custody trial, the Court will determine a custodial arrangement based on “the best interests of the child.”  In determining the custodial arrangement in the child’s best interests, the Court must consider the following factors enumerated by statute:

1. the parents’ ability to agree, communicate and cooperate in matters relating to the child;
2. the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
3. the interaction and relationship of the child with its parents and siblings;
4. the history of domestic violence, if any;
5. the safety of the child and the safety of either parent from physical abuse by the other parent;
6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
7. the needs of the child;
8. the stability of the home environment offered;
9. the quality and continuity of the child’s education;
10. the fitness of the parents;
11. the geographical proximity of the parents’ homes;
12. the extent and quality of the time spent with the child prior to or subsequent to the separation;
13. the parents’ employment responsibilities; and
14. the age and number of the children.

Out of court custody and parenting time agreements are often the better option than deferring to the Court.  Reaching agreements is generally less costly, both financially and emotionally.  Significantly, parents themselves can determine the best arrangement for their children.

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