Children and Divorce Custody A. Generally There are various statutes and Court Rules that address custody and related issues in New Jersey. It is important for divorcing parents to understand that the state Legislature has found that it is in the best interests of children to have frequent and continuing contact with both parents after separation and divorce and that it is in the public interest to encourage both parents to share the rights and responsibilities of rearing their children. The law in New Jersey also provides that the rights of both parents are equal. The Court may accept any custody arrangement which is agreed to by both parents provided that it is not contrary to the children’s best interests. If the parents are unable to agree upon custody, and the Court finds that custody is a genuine and substantial issue, the case must be referred to mediation. If mediation is unsuccessful, the Court may then order an investigation or evaluation before the trial. Following the trial, the Court may enter an Order addressing both legal and physical custody, whether joint or sole; provisions for parenting time, provisions for major decision making, involving the children’s health, education and general welfare and may, under certain circumstances, restrict parents from permanently leaving the State of New Jersey with the children absent the consent of the other parent. B. Factors That the Court Must Consider In making a custody determination, the court shall consider but not be limited to the following factors: 1. The parents’ ability to agree, communicate, 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; the extent and quality of the time spent with the child prior to or subsequent to the separation; 12. The parents’ employment responsibilities; and 13. The age and number of the children. In a contested case, the Court may require each parent to submit a Parenting Plan, which the Court shall then consider in making its custody determination. C. Use of Custody Experts In most contested custody cases, one or both of the parties are likely to retain the services of a “custody expert”, usually a licensed psychologist. In some cases a joint expert is retained. Routinely, the expert will meet with each of the parents, each of the children, the parents with the children, conduct relevant psychological testing, review documents provided by the parties and counsel and speak with other mental health professional (i.e. therapist for one of the children or parties) and other collateral witnesses (i.e. teachers, child care providers etc.) Psychologists who perform custody evaluations are governed by the Guidelines for Child Custody Evaluations in Divorce Proceedings. See http://www.apa.org/practice/childcustody.html The Court may also appoint a Guardian Ad Litem to represent the best interests of the child or children. In addition to or in the alternative, the Court may also appoint counsel for the children if it appears that the children’s best interests are not being sufficiently protected by counsel for the parties. The primary difference is that, while the Guardian Ad Litem must be primarily concerned with the child’s best interest, the Law Guardian or Court Appointed Counsel must advocate the child’s wishes for the Court’s consideration. D. Use of a Parenting Coordinator The New Jersey Supreme Court has approved a Parenting Coordinator Pilot Program in Bergen, Middlesex, Morris/Sussex and Union Counties. A parenting coordinator is defined as A qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established and the parties cannot resolve these issues on their own. The Parenting Coordinator’s goal is to aid the parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development. See further materials on the Parenting Coordinator Pilot Program Implementation Guidelines at www.judiciary.state.nj.us . |