How Are Custody and Parenting Time Determined?

Very few issues are as emotionally charged as determining custody and parenting time during a divorce proceeding. Unfortunately, there are many common misconceptions about the determination of custody and parenting time.

There are two types of custody in New Jersey: legal custody and physical custody. There is a very strong preference for Joint Legal Custody in New Jersey, which requires that both parties are consulted with all major decisions affecting the health, education and general welfare of the child(ren).

For reference, physical custody refers to whomever has the child(ren) more than 50 percent of the time. The parent who has the children more than 50 percent of the time is designated as the Parent of Primary Residence, and the other parent is designated as the Parent of Alternate Residence. Court rules specify that holiday parenting time and vacation parenting time are not included in either party’s number of overnights with the child(ren) per each year. This is important because the annual number of overnights is necessary to determine child support pursuant to the New Jersey Child Support Guidelines.

The court rules in the state of New Jersey require that, in cases where custody and/or parenting time is an issue, the court is required to refer the case to mediation through the courts. If mediation is successful, the court personnel will prepare a Memorandum of Understanding (MOU). Once finished, they will send the MOU to the parties’ attorneys who will then incorporate it into a Custody and Parenting Time Consent Order. Finally, this completed MOU will be filed with the court and set forth the parties’ agreement regarding custody and parenting time. These agreements can later be modified based upon a showing that a material change in circumstances has occurred. Making this modification of custody and/or parenting time is shown to be in the best interests of the child.

In the event that Custody and Parenting Time Mediation is unsuccessful, the court may require an investigation into the condition of the homes of either party, the character and fitness of either parent, the economic condition of the family and the financial ability of the party to pay alimony, support or both.

As far as the investigation goes, the consideration of the parties’ homes shall be limited to a factual description of the house where the child will reside or visit, whether there are appropriate child-safety precautions in place, the number of household members and their relationship to the child and criminal record checks for both parties. These reports must be filed to the court within 45 days of the ordered investigation and shall be furnished to the parties. However, these reports are determined to be confidential.

If the parties are still unable to resolve the issue of custody and parenting time, the parties will likely first have to undergo a Custody Neutral Assessment (CNA), depending on the county, and eventually will have to retain custody expert(s) to issue a recommendation to the court as to what custody and parenting time arrangement will be in the child(ren)’s best interests.

Custody disputes are one of the most hotly contested issues in the area of family law, and if you or someone you know may be facing a custody and parenting time issue, it is recommended that person contact an experienced matrimonial attorney to discuss how best to proceed.

OG Post by: Stark & Stark