Child Custody

How is a Child Custody Dispute Decided

NJ CHILD CUSTODY


When deciding a child custody issue, there are many factors that a New Jersey court will take into consideration in every case. Most importantly, the court's largest concern is always to protect the children of the marriage and to promote what the court considers to be the most beneficial situation for the children. The "Best Interest of the Child" will always be the primary consideration of any Judge deciding the case, and a phrase you will hear constantly throughout the proceedings.

There are many considerations that a Court will take into account in reaching a decision as to just what are the "Best Interest of the Child". These are many and cannot be completely listed as each case will be unique, but some general statements can be made.

What are some of the elements that help a Court in deciding the “Best Interest of the Child” standard?

• Relationship of the child with his/her parents and siblings

• Each parent's ability to communicate with the other and work together peacefully and constructively with the other

• Each parent's willingness to accept custody arrangements, whether by agreement or imposed by the court

• Any history of a parent's unwillingness to cooperate with a custody plan

• Fitness of each parent

• Geographical proximity of the parents' homes

• Age and number of children

• Child's preference, when the child is of a sufficient age and intelligence to make a decision

• Any history of Domestic Violence

• Stability of the home environment of each of the parents

• Needs of the child

Child Custody Agreements Between the Parents

The court will give great deference to the parents in deciding where and with which parent the child will live.  When both parents can agree upon what should be done, the court will generally endorse their plan and not interfere. Such an agreement will be considered in the best interest of the child, and the agreement will become enforceable against either party.

When litigants are unable to reach an agreement, a Temporary Order of Custody will be issued by the judge. Your case may then be submitted for a custody evaluation by an agency trusted by the court.

When custody is decided, or agreed upon, it may be either Sole, or Joint.  When Sole Custody, one parent is designated as the primary caretaker with the other receiving limited visitation time.  In Joint Custody, both parents are given leeway to decide their parenting times with each other.  If they cannot agree however the court may impose a schedule.  When considering these factors, keep in mind that each case is unique, and that this ‘uniqueness’ may provide an opportunity for you and your spouse to compromise and reach agreement, with a plan which even if not perfect, is livable for each, and more importantly, in the “best interests of the child”.

Is Custody Affected by Who Files for Divorce First?

Who files for divorce first has no impact on ultimately who will be granted custody. There can be a considerable strategic benefit to the person who files first if not only because that spouse is setting the agenda for the case rather than defending.

With that said, if one spouse has done illegal or immoral things that led to the divorce, or that affected the children, a judge may be swayed when considering custody. Even if you are not ‘first to file’, such factors may be brought by a defendant, by way of counterclaim against the plaintiff, the ‘first to file’, in the case.

What is the best way for me to go forward with my case?

In many cases it will seem as if you have already lost, or that the judge has already decided.  Having the right attorney with you, with experience and presence in the court can make a tremendous difference.  The lawyers of Avery & Avery, have years of experience and judgment which can guide you through your divorce or child custody matter, and help you reach the right result for you, and your children.


Additional Resources and Frequently Asked Questions:

What are the court procedures and rules as to mediation and investigation?

http://www.judiciary.state.nj.us/rules/r5-8.htm


How does the court view parenting time issues?

http://www.judiciary.state.nj.us/hudson/family/mediation.html


How does the court compute child support?

http://www.judiciary.state.nj.us/rules/r5-6a.html


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