Family Law

How do Judges Decide Child Custody in New Jersey

By Lina Guillen, Attorney
Learn about the different kinds of custody and visitation and how New Jersey judges decide custody cases.

Child Custody and Visitation in New Jersey

If you live in New Jersey and you’re going through a divorce or a breakup, you need to know that the state’s official family law policy is to ensure that kids have frequent and continuing contact with both parents after a divorce or separation and that parents share child-rearing responsibilities as equally as possible.

This means that the courts will do their best to make sure your kids have a full and rich relationship with you and your ex. But the question remains: how do courts decide who gets custody?

What’s the Difference Between Legal and Physical Custody?

You often hear people casually talking about “full custody,” but there is no such legal terminology. There are different types of custody, and each has a different meaning.

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Legal custody is about giving a parent a voice in a child’s upbringing. A parent with legal custody will give input and help make decisions about important issues in the child’s life. For example, parents with legal custody are involved in the child’s education, extracurricular activities, religious and spiritual affairs, cultural activities, and medical care.
  • Sole custody means that one parent has full physical or legal custody, or possibly both. A parent with sole physical custody has the children most of the time and assumes primary responsibility for their daily care, while the other parent spends smaller amounts of visitation time with the them. On the other hand, a parent who has sole legal custody has the authority to manage a child’s educational, religious, spiritual, cultural, and medical needs. Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful.
  • Joint custody is shared, meaning that both parents have nearly equal rights and responsibilities in child-rearing. If a judge orders joint physical custody, the children typically spend a lot of time at each parent’s residence, according to a set schedule. If a judge orders joint legal custody, both parents have an equal voice in making important decisions about the child life.

One of the most important things to know about shared custody is that the parents have to be willing and able to cooperate with each other or a judge will not award joint custody. If there’s an extensive history of serious arguments and problems, there won’t be a joint custody award.

When parents share joint legal custody, they’re obligated to share information about the child’s health, education, and welfare with each other. They also have to make important decisions together. They have to be forthcoming with each other and willing to cooperate, or joint legal custody won’t work.

What Is Visitation?

Generally speaking, visitation is a court-ordered, scheduled time when a noncustodial parent is able to be with the kids physically (for example, during summer breaks or weekend visits), call them on the telephone, or speak through real-time video call apps like Skype or FaceTime.

Both parents are governed by the visitation schedule the judge imposes, although the parent with sole physical custody can always agree to give the non-custodial parent more visitation time. If that happens, it’s wise to document the situation by asking the court to adjust the old schedule to match the new one.

Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, the court may structure its visitation order to make sure the kids are protected by ordering supervised visitation, where a family member or someone else can oversee the parent-child visits in a neutral location. However, it's rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Never try to prevent your ex from exercising court-ordered visitation. If you do, you can be subject to sanctions (judicial punishment). However, if you believe your child would be immediately or physically endangered by visiting with the other parent, you should immediately contact a family attorney for advice and possibly request emergency custody orders.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

The court will always encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be unhappy with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

You should consult with an experienced family law attorney when you have to negotiate child custody, but if you’re self-represented or you just want to learn more, the New Jersey Courts’ Self-Help Center (Family Law Division) has a website with helpful forms and other information about custody.

How Do Judges Decide Custody Issues?

In New Jersey, judges have to make custody decisions that serve the child’s best interests. It doesn’t matter that a parent is hurt or offended by a custody order so long as the order is what’s best for the child. To make a decision about what’s best, the court has to look at the following factors:

  • the parents’ ability to agree, communicate, and cooperate where the child is concerned
  • the parents’ willingness to accept custody
  • whether either parent has a history of trying to block the other parent from having contact with the child (note: this does not apply if there is a substantiated record of abuse)
  • the child’s interaction and relationship with each parent and sibling
  • whether there’s a history of domestic violence in the family
  • whether either parent or the child is at risk of physical abuse by the other parent
  • the child’s wishes, if the child is old enough to express a rational opinion
  • the child’s needs
  • the stability of each parent’s home environment
  • the child’s education
  • the fitness of each parent (note: a parent is only “unfit” if that parent’s behavior has a substantial, harmful effect on the child)
  • the geographical proximity of the parents’ homes
  • the extent and quality of the time each parent spent with the child before the separation
  • the parents’ employment responsibilities
  • the age and number of the parents’ children, and
  • any other information not present in this list that is relevant to the parent-child relationship.

If your case is tough, the court may appoint a guardian ad litem (an expert in child welfare whose job is to advocate for your kids) to act as an expert witness. The guardian will be neutral toward you and your ex, but will conduct a thorough investigation, including home and school visits and interviews. When the investigation is complete, the guardian gives the judge a report with custody and visitation recommendations. The judge will take the recommendations into account but still reach an independent legal conclusion.

If your case is especially complicated, the court can appoint both a guardian ad litem and an attorney. Having an attorney to represent the children in tough cases can be valuable because as difficult cases progress, there’s sometimes a tendency for the parents’ lawyers to push for what’s best for their clients rather than what’s best for the children. Guardians and court-appointed attorneys can help get the case back on track and re-focus everyone on what’s most important.

At the conclusion of the case, the judge will write a detailed order with findings about each of the factors based on the evidence presented at trial. The order will explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify (or change) the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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