If you have kids and are separated from your spouse or considering divorce, this post is for you. Generally, before resolving the finances of your divorce, such as alimony or division of marital assets, custody and parenting time arrangements will need to be made for your children. These arrangements are typically finalized in a written legal document obtained in the following 3 ways.
1. Mutual agreement
In New Jersey, the vast majority of divorcing parents enter into a written agreement with respect to custody and parenting time without going to court. And it’s generally much better for children when divorcing parents agree on these arrangements without involving the court. It’s also generally far less expensive.
Ideally, you and your spouse can agree directly on custody and parenting time for your kids. Generally, at a minimum, decisions typically include: (1) where your kids will physically reside more than 50% of the time; (2) how you will each share parenting time with the children (including holidays and vacations); and (3) how you will share major decisions for the children’s health, education, and general welfare. For more details, check out this post.
The lawyer representing you or your spouse can simply draft a custody and parenting time agreement that you both sign. The signed agreement can simply be attached and incorporated into your divorce agreement.
2. Custody and parenting time mediation
Generally, one spouse initiates a divorce action by filing a Complaint for Divorce with the court and the other spouse files an “Answer.” Thereafter, the court will typically schedule you and your spouse to attend custody and parenting time mediation together with the court mediator. Both spouses meet with the court mediator at that time. The mediator helps you agree on significant matters relating to the custody and parenting time of your child.
These matters typically include how major decisions will be made regarding the child’s health, education, and general welfare; where the child will primarily reside; parenting time schedule, including holidays and vacations; and how any future custody and parenting time disagreements will be resolved.
If you and your spouse reach agreement in custody and parenting time mediation, the court mediator typically drafts a Memorandum of Understanding (“MOU”). An MOU is a written non-binding agreement.
The mediator typically sends the MOU to each lawyer to review. If there are no changes, MOU is typically forwarded to the assigned judge to enter it as a court order.
Sometimes, however, your lawyer might advise additional provisions in the MOU before making it binding. These might include, for instance, parent authorizations for any illnesses or accidents, surgery, hospitalization, or summer camp; parents’ presence at school and other events and activities; parenting time during school breaks; or how to address when significant others enter the picture.
When you and your spouse agree on any such revisions, either lawyer might draft a legal document called a “Consent Order.” This is typically signed by both spouses and lawyers and sent to the court and entered as a binding court order.
3. Custody and parenting time decided by the court
If you and your spouse are unable to reach a custody and parenting time agreement in mediation or with the help of attorneys, the court will generally designate a forensic psychologist to undertake an extensive child custody evaluation. This process is generally far more time consuming and costly. Perhaps most importantly, children are much more likely to experience adverse emotional difficulties.
The child custody evaluation generally involves psychological testing of each parent, multiple interviews with each parent separately and with the child and any additional relevant interviews or documentation.
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.
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 a variety of factors enumerated by New Jersey law, which you can find here.
Out-of-court custody and parenting time agreements are generally the far better option than deferring to the Court. In general, not only are the financial and emotional costs significantly reduced, as parents, you and your spouse are best suited to determine the best custody and parenting time arrangements for your kids.
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