Child Custody & Parenting Time FAQs in New Jersey

How do I get custody of my kids? Find out the answers to this and other frequently asked questions about parenting time and child custody in New Jersey in our child custody & parenting time FAQs:

The following is a list of common and frequently asked questions on the topic of legal issues around children and parenting topics in times of divorce or in other family law situations in New Jersey. Please also see our FAQs around the following issues:

In a child or parenting issue in divorce or family law matters there can be an abundance of questions regarding your legal situation. We understand that each family and legal issue is unique. While laws may be static, your questions and concerns are not. If you’d like to ask a question that you don’t see here in our FAQ section, please see our Ask Your Question page to ask your questions about child or parenting issues in divorce or family law.

Please note that our answers fall under New Jersey jurisdiction and may not apply to you should your family law or divorce legal issue be located out of the state of New Jersey.

What are the different types of child custody?

The court has to look at the statutory factors when they’re determining child custody. Child custody comes in a number of forms. You have sole custody, joint legal custody, and shared legal and physical custody, and they’re entirely different. Sole custody is when one parent is designated to make all of the decisions for the child, and the other parent, who doesn’t live with the child, makes none of the decisions on behalf of the child. Joint legal custody is where the parent who serves as the child’s primary residence, so the custodial parent, in fact, makes the day to day decisions, the routine decisions for that particular child or the children living in that particular home. And the non-custodial parent, the one who doesn’t really live with the child on a day-to-day basis but has a visitation schedule with the child participates in major decisions with the primary custodial parent when you’re talking about major decisions regarding health, education, general welfare for the child and even religious-type decisions.

Shared legal and physical custody has to do with similar type decision-making, but also a different type of residential routine. That’s where it could be a 50/50 type of a split, or they do three days and four days, and they switch homes. Some psychologists don’t agree that this is stable for the children, but many parents who continue to have a civil relationship after the divorce is over find that this works really, really well for the kids because they continue to serve as co-parents in the truest sense even after the divorce, but they have to get along really well for this to work.

What is the difference between legal and physical child custody in New Jersey?

Generally, physical child custody (also known as residential custody) is where your child actually physically resides. Legal custody grants a parent the ability to make decisions for that child, such as major medical decisions, education decisions and religious decisions. Legal custody also affords a parent the right to access a child’s education and medical records from their school and professional medical providers.

How do I file for legal and/or physical custody of my child?

You would file an application with the family division in the county where the child resides, if the child does not reside with you. If your child lives out of New Jersey, generally the court where the child now lives would have jurisdiction, so you would file there. Your application (or complaint) would tell the court that you are asking for legal and/or physical custody of your child and why. If you are seeking child custody during a divorce, you would ask for custody within your divorce complaint.

How do I get custody of my unborn child?

The court will not address custody of your child until he or she is born. However, you can use the time before your child is born to discuss with your child’s other parent the kinds of custody arrangement or parenting time plan that will most benefit your son or daughter.

How do I get emergency custody of a child?

If you feel that a child is in danger or may suffer harm, you can file an emergency application with the court, called an Order to Show Cause in the county where the child resides. A judge will see you the same day. You must prove, however, that if the judge does not grant you custody right away, the child will suffer immediate and irreparable harm. Also know that even if the judge agrees with you, this order will be temporary and you will have to return to the court, usually within 10 days, for a more expanded hearing. If the judge does not agree with you, your application will be turned into an ordinary complaint for custody, and you will return to the court for a decision within four weeks or so.

How do I give someone custody of my child?

Unless you are voluntarily giving custody to the other parent of your child, it is difficult to give another person custody of your child. If you wish to do so, a court or an approved agency must sign off on this. If you are giving custody (either legal or physical) to the other parent and you both have an agreement, you can submit that written agreement (known as a consent order) to the court for the judge’s approval and signature.

How do I give someone custody of my child if I die?

If you have sole legal and physical custody of your child (meaning that you do not share custody with the other parent) at the time of your death, you can name a person to act as that child’s guardian in your last will and testament. If you share either legal or physical custody of your child, they have the first right to custody if you pass, and you cannot pass on your right to a third party in your will. It is always advisable that you should name a guardian in your will in the event you pass having sole custody.

How do I regain custody of my child?

If the court ordered that custody of your child be given to someone else, you would have to file an application with the court asking the judge to return custody to you. However, you would have to prove to the judge that there has been some sort of significant change in circumstances that would warrant a change in custody back to you, since the time the judge decided that custody of your child should go to someone else. There will likely be a hearing in front of the judge.

How do I get custody of a child that is not my child?

In New Jersey, if there is a custody fight between a parent and a non-parent, the courts very strongly give preference to the parent. You would have to prove to the judge that preference should not be given to the parent because of gross misconduct, neglect, because the parent is unfit or other exceptional circumstances and that having the child live with you would be in the child’s best interests and parental rights should be denied.

How do I find out who has custody of my child?

If you do not have legal custody of your child, and you know where you child resides, you can file an application with the court in that county and ask for a determination of custody. If you do not know where you child is living, you may need to hire someone to help you find them. Generally, court documents concerning custody are confidential, but you can request a release of those documents. It is advised that you seek the assistance of an attorney to help you with this process.

How do I get custody of my child without a lawyer?

You can file your own application with the court seeking custody of your child and represent yourself in the hearing. However, it is strongly advised that you at least have a consultation with an attorney experienced in child custody matter, as the proceeding can become complicated.

How much does a good custody lawyer cost?

Family attorneys in New Jersey typically charge by the hour and ask for a retainer (a lump sum payment) at the start of your case. Their hourly rate depends upon their reputation and experience and can range anywhere from $225 to $500 an hour. It is important you seek an attorney who is experienced in handling custody matters.

On average, who much does a custody case cost?

This is difficult to determine, because it depends on the facts of your case. If your case is very complicated or if the person who is fighting you for custody is very unreasonable, the case will last much longer, may go to trial, and therefore, cost more. There is also the possibility of other costs such as hiring psychological experts. The court may also appoint a guardian ad litem, who is in charge of making recommendations to the court about what is in the child’s best interests, which is also another cost to you.

How do I prove that I have custody of my child?

If a judge has awarded you custody, then you were given a court order, signed by the judge that indicated you have custody of your child. If you are married, it is assumed that you have joint legal custody, unless a judge has decided otherwise. If you have never been to court and are married, you can prove custody with your child’s birth certificate. If you are not married, you must ask the court to establish custody.

How do I keep custody of my child?

Only a court has the authority to change or end the custody you have of your child and the court can do this only after there has been a full hearing, typically triggered when one parent files for modification of the child custody order. If you are concerned that you may lose custody of your child, seek the advice of an attorney who is experienced in handling custody cases, so that you know your rights.

What is the difference between temporary and permanent custody in New Jersey?

All custody in New Jersey is temporary. There is no such thing as “permanent” custody in New Jersey. Courts are aware that peoples’ lives change frequently, so to order permanent custody of a child would not make sense. Parents move, people pass away, etc. To reflect the ever-changing lives of people, the court has come to recognize that custody should always been deemed “temporary.”

How do I get primary physical custody of my child in New Jersey?

Primary physical custody (or where your child physically spends the majority of their time) is also known as primary residential custody. If you and your child’s other parent are at odds regarding who should have primary physical custody, then the court will have to decide, after you file your request with the court seeking primary physical custody. The court looks at various factors when making this decision, such as which parent lives in the child’s school district, which parent has been the primary caretaker of the child, and, most importantly, what is in the best interests of your child. When one parent is known as the parent of primary residence, usually the other parent is known as the parent of alternate residence.

Can parents share physical (residential) custody?

Yes. Courts will allow parents to share physical custody of their children, provided that the arrangement is in the best interests of the child. Arrangements can be alternating weeks, months, or, in rare cases, years. Parents can also split the week, with the child at one parent’s home 3 days and the other parent’s home for 4 days. This would switch week by week. Generally, it is best to have both parents living close to one another, to minimize travel time for the child and overall disruption to his or her schedule. Also, both parents need to provide the child with adequate living conditions, living space and be able to provide the child with all that comes with the responsibility of physical custody.

Can parents share legal custody?

Yes. In fact, in most circumstances, courts will give both parents legal custody. This is known as sharing joint legal custody. This means that both parents have the right to make major decisions for the child (religion, major medical decisions, college, etc.) and both parents have the right to input on these decisions. This also allows both parents access to the child’s school and medical records. Both parents should work together on making these life decisions on behalf of their children and cannot make these types of decisions on their own. If parents who share joint legal custody cannot agree, they have to take the dispute to the judge.

Can I be awarded sole physical custody of my child?

Obtaining sole physical custody of your child means your child stays with you full-time and that the other parent has no parenting time with your child. This is very difficult to obtain because courts in New Jersey very much favor both parents being involved in the child’s life. In order to obtain sole physical custody of your child, you would have to show that having your child see their other parent would be harmful to the child in some way or that he or she would be in danger or neglected by the other parent. Unless the other parent agrees to this, it is unlikely you would be awarded sole physical custody by the court.

Can I be awarded sole legal custody of my child?

It is possible to be awarded sole legal custody of your child, where you would be the only parent making the big decisions in your child’s life. However, it is almost always ordered by the court that both parents share joint legal custody and have input into their child’s life decisions. If the other parent of your child has been largely absent from the child’s life for a long period of time, or if you and the other parent have a domestic violence restraining order in place against either of you, then the court will not order joint legal custody. Further, if the other parent is incarcerated or incapable of making decisions for your child, then the court is unlikely to award joint legal custody.

I want to ask for more parenting time with my 8-year-old son, but I currently live with my parents in a small apartment. My wife and I separated and I moved out several months ago and up until now, we agreed that I would have my son a few hours after school and overnights on Fridays. I asked for more overnights, but my wife disagrees because he sleeps on an air mattress when he is here. Will the judge give me more overnights?

When any judge here in New Jersey considers custody or parenting time issues, their first and foremost concern is what is in the best interests of the child. In fact, all courts must base their decisions based on the best interests standard. In addition, courts favor both parents being extensively involved in their child’s life to the extent possible. The more time your child spends with you, the better. However, it is very important that you provide for your son an environment that is in his best interests, especially as he gets older and requires his own space and more privacy. Begin the process of getting your own apartment that provides your son his own bedroom and then file a request with the court for joint legal custody and a set parenting time plan. If you believe that sharing physical custody of him is in his best interests you can certainly file for that, as well. Either way, get a written and formal order that spells out custody and parenting time. Unfortunately, attempting to work out these arrangements with your ex does not seem to be working.

My ex keeps threatening to move to Georgia with our 8 year old daughter. I do not want her to go. Can she take my daughter to live in Georgia without my consent?

No. The law in New Jersey with regard to locating out of state is clear. The parent wishing to relocate must have either the permission of the child’s other parent to move, or a court order signed by a judge that grants permission to relocate out of state. Your ex, if she wishes to relocate with your daughter, must file an application with the family court requesting permission to relocate to Georgia. The court will consider many factors including whether or not she has a good faith reason for the move (such as a job offer) and the reason why you are opposed to it. She is going to have to offer a substantial and extensive parenting time plan for you which, if she is permitted to move, should include extended time in New Jersey such as a month in the summer and winter or spring breaks from school. Do not withhold permission just to be spiteful. If she is relocating for a good reason and the area where she is moving to is good for your child, she will most likely be permitted to go. Focus on getting a very extensive parenting time plan.

The judge in my case ordered a custody evaluation and recommended a joint psychologist to evaluate me, my ex and my child who is 11 years old. I read the report and I disagree with much of it. I want to respond to the report so the judge knows what is incorrect and what I disagree with. How can I respond?

Your best course of action at this point is to hire your own independent psychologist to conduct their own evaluations and submit a separate report after their evaluations are completed. This is really the most effective way to rebut any conclusions in the first expert’s report that you believe are inaccurate. Be sure, however, that you are not contesting the report simply because you do not care for the findings as this will could serve to make you appear unreasonable to the judge. Also, be aware that you will most likely have to foot the bill for a new psychologist’s fees. Consider using the services of a family law attorney who can guide you through this process.

Almost every time my child’s father comes to pick him up for parenting time, he curses at me, shows up very late or attempts to cause an argument with me. I have been writing down all of these episodes in a journal. Is that helpful if I have to go to court?

Any documentation including a diary or a journal is helpful as proof if you end up in court. Likewise, you should be keeping any offensive emails, threatening text messages or abusive voicemail messages evidence of his inappropriate behavior. This is especially offensive if he is behaving this way in front of your child, which can be traumatizing. If the situation worsens, you should file an application with the court to limit parenting time. Consider another place for picking up and dropping off your child, such as a local police precinct. Of course, if you feel unsafe or threatened, consider filing for a temporary restraining order against your ex.

How can my child’s father claim him as a dependent on his income taxes, when our son lives with me the majority of the time? His father has him on alternating weekends.

The IRS regulations and not family law actually discuss this issue and the default is that the parent who has the child the majority of the time does indeed get to claim the child on their income taxes. However, parents can agree to a different arrangement when it comes to this issue. Some parents alternate the deduction year by year. If a family has two children, sometimes each parent takes one child. What is prohibited, however, is both parents claiming the child in the same year. It is a good idea to talk to your tax professional to get some guidance on what works best for your family.

How do I stop my child’s mother from having men over when my 9 year old child is there? I am not sure if they are boyfriends or just friends and I do not want to question my child about this.

It is very wise to make the decision to not involve your daughter in these types of adult issues. Doing so will only serve to make your daughter anxious, defensive and could force her to feel as though she has to choose sides. And, if the matter does end up before a judge, he or she will not look kindly upon your involving your child in this type of discussion. That being said, courts tend to not get involved in these types of family issues, unless you have some sort of proof that your child is being harmed or in some sort of danger because of your exes’ house guests. If you suspect there is some sort of negative effect to your child, begin documenting the situation in a journal, in case you do have to file a motion with the court.

Can my ex-husband keep my 13 year old son from visiting with me, even though we have a visitation schedule that we agreed to in court-ordered mediation? I’m supposed to have my son every other weekend from Friday until Monday morning, but my ex has not complied for the last month. When I call him, he doesn’t answer the phone.

If you have a signed order from the court that lays out your agreement with regard to parenting time with your son and your ex-husband is refusing to bring your child to you, he is defying a court order. You should file a motion with the court immediately enforcing your rights that are contained in your agreement, specifically your right to alternate weekend parenting time with your child. The judge will want to hear from your ex about why he has not brought your son for his parenting time with you. Without an extremely compelling reason, such as proof of abuse or neglect on your part, the judge will enforce your parenting time order and you ex will be forced to obey. If he continues to disobey the judge’s ruling, he is subject to being held in contempt of court which can carry various sanctions.

My ex-boyfriend and I have joint legal custody of our 3 year old son after going to court. Recently, he enrolled our child in daycare without my knowledge or permission. He also frequently changes the pickup and drop off times when he has visitation. Can he change our court order or make decisions himself for our child?

No. Your child’s other parent is not free to change a court order or formal agreement without your permission and input. Since you share legal custody of your child, decisions such as education, religion, major medical and day care choice must be presented and discussed by the both of you. In the even that you cannot agree upon a school or daycare, then you would have to have the court ultimately decide. It is always best to come to an agreement in these situations, but if you simply cannot sit down with your ex and discuss the daycare and his repeated lateness, you may have no other choice but to file a motion to enforce your rights found in your court order.

I was recently given residential custody of my child. Her mother has severe bi-polar disorder. She recently sent me a letter telling me that she has filed for custody. Should I hire an attorney?

If you have received only the letter from your child’s other parent, and no legal paperwork such as a motion or a complaint that she filed or a court date in the mail, then there is nothing that needs to be done at this point. Your order for residential custody stays in full effect unless and until the family court judge changes it after a hearing. If you do receive paperwork, you should contact an attorney. It is not easy to change custody and your wife will have to prove that there has been a significant change in circumstances that would lead a judge to change the order that is now in place.

Can I force my daughter’s father to pick her up for his parenting time with her? She is four years old and he is supposed to have her every Saturday. He rarely shows up and it is starting to affect her emotionally.

Unfortunately, there is no law on the books in New Jersey that can force your child’s other parent to be a good parent. A judge cannot order your ex to show up for his parenting time. What you can do is file a motion with the court asking that all parenting time be suspended, because the constant waiting and eventual disappointment is hurting your daughter. Sometimes, no parenting time is better than your daughter becoming hopeful and waiting by the door for her father, only to be disappointed. Hopefully, having all parenting time threatened will wake him up and he will begin to see your child on a regular basis.

Custody & Religious Holidays

My husband and I are divorcing and we are attempting to work out a holiday plan. I am Jewish and he is Catholic and we have raised our daughter as Catholic, meaning we celebrate Christmas. He is demanding that he have our daughter for all Catholic holidays because he is Catholic and I am not. Is this legal?

Just because you are Jewish does not mean that you automatically give up your rights to celebrate a Christian or Catholic holiday with your child. You should continue to work with your husband to come up with a workable parenting time and holiday schedule based only upon both of your wishes and the best interests of the children. If you cannot agree, consider mediation.

My ex-girlfriend informed me that she is pregnant and wants me to have no involvement with the child when he or she is born. She is due in about four months. What can I do to make sure that I can be a part of my child’s life?

Once your child is born, you will need to file papers with the court seeking to establish paternity of the child, and also seeking at least joint legal custody and parenting time with your child. If you are in the position to share physical custody of your child, meaning that your child would spend fifty percent of the time with you and fifty percent of the time with your ex, than file for joint physical custody as well. Just be sure that whatever custody and/or parenting time arrangement you are seeking is in your child’s best interests and that you can truly be there during the time you are requesting. Also, be aware that you will most likely be responsible for child support, as well.

Sole Custody FAQ:

I would like to file for sole custody of my two children, who are now in the custody of their mother. They are ages 9 and 11 and they tell me that they want to live with me. Their mother now lives with her new boyfriend and they tell me they want to live with me, now. Can I get custody?

You would have to prove to the court that not only is it in your children’s best interests to be in your custody, you would also have to prove that there has been a significant change in circumstances since their mother was awarded custody that would warrant a change in custody. Unless they are subjected to some sort of abuse or neglect, it is a difficult case to prove. Consider increasing your parenting time or even sharing legal and physical custody of your children with their mother. Courts strongly favor substantial involvement of both parents in children’s lives.

When courts decide custody, does it matter which parent makes more money? I am afraid to leave my child’s father because he makes much more than I do and I don’t want to lose my child.

The courts will not base a custody decision based upon which parent earns more money. The courts look at what is in the best interests of the child. If you can provide a clean, safe and loving environment for your child than you will be providing for their best interests. You will also be entitled to child support from the father to assist you in raising your child and providing for them.

My ex-girlfriend has not brought our son to me for my parenting time with him on several occasions, sometimes with no explanation. Does she have to make up that time, to me?

You would be entitled to make-up time with your son. Courts in New Jersey do not look kindly upon parents not bringing their children for parenting time with their other parent. In fact, New Jersey courts favor substantial contact with both parents. If she continues to fail to provide your child for parenting time, consider filing a motion with the court to enforce your rights and seek make-up time.

Child Custody & Parenting Time: Get The Answers You Need

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