Divorce and separation is hard on everyone, but especially on the kids.
New Jersey parenting plans are designed to make life easier for the children
involved. Child custody can be established by a judge if parents can’t
agree, but it is always best if parents work together on the details.
Once the child custody plan is set, any changes usually require proof of a substantial change in circumstance. That is why it is so important to have an experienced Middlesex County child custody attorney working with you from the very beginning.
As outlined in the 1997 New Jersey appellate court case of Kinsella v. Kinsella, any child custody determination will prioritize the best interest of the child. Once the trial judge has ruled on child custody, an appellate court generally will not disturb the ruling unless those findings could not be reasonably reached with sufficient credible evidence available on the record OR there is a request for modification that involves a “substantial change in circumstance.” But of course, it will all come down to what is best for your child.
The care and best interest of your child is of the utmost importance, so having a skilled child custody lawyer to represent you in this process is imperative.
What Do Courts Consider When Deciding Child Custody in New Jersey?
There are three different types of child custody in New Jersey: Sole custody, joint legal custody and joint physical custody. Sole custody involves one parent making all decisions without notice or consent from the other parent. Joint legal custody is where one parent is designated the parent of primary residence, with both participating in decision-making. Joint physical custody is where parents share in primary caretaking and decision-making.
As outlined in N.J.S.A. 9:2-4(c), there are several mandatory factors the courts must weigh. Those include:
- Parents’ ability to communicate, cooperate and agree on matters involving the child;
- Parents’ willingness to accept the child custody/ parenting time arrangement;
- Interaction/ relationship of child with parents and siblings;
- Needs of the child;
- Safety of the child;
- Preference of the child (when of sufficient age and capacity to reach an intelligent decision);
- Home environment stability;
- Parents’ employment responsibilities;
- Extent and quality of time spent with child before or after separation;
- Quality and continuity of child’s education.
Voluntary child custody agreements are generally honored unless doing so would not be in the best interests of the children.
Interfering with the arrangement once it is set may not only have consequences for your case, it could even result in criminal sanctions per N.J.S.A. 2C:13-4.
What is a Substantial Change in Circumstance for New Jersey Child Custody?
If a parent wants to alter an existing court order, there is always the first option of trying to reach a voluntary agreement with the other parent. However, absent a court order, there would be no way to enforce it if the other parent changes his or her mind.
If you want the assurance of a court order or if the other parent does not agree to the change in the first place, you will need for a modification of custody or parenting time. This typically starts with your Middlesex Count child custody attorney submitting a motion (written request) to the court. The court will then hold a hearing, but be prepared to explain a substantial change in circumstances.
There are a couple of reasons why courts use this guideline. The first is to encourage stability for children, which is seen in their best interest. The second is to prevent the courts from being overburdened with modification requests.
There are no hard-and-fast rules for what constitutes a substantial change, but as outlined in the 1958 New Jersey Supreme Court case of Sheehan v. Sheehan, one must establish:
- The current custody schedule;
- Circumstances that changed after that order was entered;
- The adverse effect the new circumstances and current arrangement have on a child’s best interests.
Some possible examples of a substantial change in circumstance might include:
- One or both parents have moved, and now live a substantial distance apart, making the previous order difficult or impossible to accomplish;
- Child’s educational process has started to fail;
- A custodial parent has begun living with another person (particularly when there is evidence the other individual may have a negative impact on the child);
- One parent refuses to comply with the existing parenting time order;
- Child is beginning school (when the initial order was set with the child being younger than school age);
- Evidence that one parent is under the influence of drugs/ alcohol while caring for children;
- A charge of familial abuse;
- Child has a stated preference that differs from existing order.
This list is not exhaustive, and just because one of these circumstances applies does not mean a change is guaranteed.
Requesting a modification of your current Middlesex child custody order is not going to be a simple matter. Having an experienced family law attorney to help will be invaluable.
If you are considering a child custody modification in New Jersey, contact our Middlesex County child custody attorneys at Rozin-Golinder Law LLC by calling (732) 810-0034.
Additional Resources: N.J.S.A. 9:2-4 Custody of child, rights of both parents considered
More Blog Entries: The Basics of Divorce Mediation in NJ, Aug. 23, 2017, New Jersey Child Custody Lawyer Blog