I spoke with divorce attorney Kathy Wagner about joint custody recently. She shared some critical insights from her 30-plus years of experience practicing family law in Somerset County, New Jersey. While there will be similarities in family law state-to-state, there are also important differences, so be sure to Google custody law in your state before taking action on any of this.
The difference between physical and legal custody
In New Jersey, the person who has physical custody has actual possession of the child, meaning the child lives primarily with that person. Having legal custody means having the right to make decisions for the child in the areas of health, education, and general welfare.
When the parents are married, both of these powers are vested in both parents. This means the child lives with both parents, and both parents can and do make legal decisions for the child.
After the parents live separately, the physical and legal custody arrangements must be settled with a custody decision either amongst themselves, memorialized by the court in the final judgment of divorce, or by a family law judge if the parents cannot agree.
The best interests of the child dictate the custody arrangement
In New Jersey, family law judges determine what custody arrangement is in the “best interests of the child.” The judge begins by presuming that children benefit from maintaining “frequent and continuing contact with both parents” and from having both parents “share the rights and responsibilities of child-rearing.” N.J.S.A. 9:2-4. Then the judge weighs the following factors, among others, in determining what custody arrangement is in the best interest of the child:
- The parents’ ability to agree, communicate, and cooperate regarding the child
- The parents’ willingness to accept custody and any history of unjustified withholding
- The interaction and relationship of the child with the parents and other siblings
- History of domestic violence
- Safety of the child and/or either parent from physical abuse by other parent
- Preference of the child of sufficient age and capacity
- Needs of the child
- Stability of home environment
- Quality and continuity of child’s education
- Fitness of parents
- Geographical proximity of parents’ homes
- Extent and quality of time spent with child both before and after separation
- Parents’ employment responsibilities
- Age and number of children
Contrary to popular belief, a judge will never exclusively use one factor—like a parent’s income level—as the sole deciding factor in who gets custody of a child.
There are three types of custody in New Jersey
In New Jersey, custody can be summarized by these three possible arrangements: Joint, Split, and Sole custody. Sole and Joint custody is defined specifically by New Jersey law.
This is what married parents have by default. Both people can make decisions about the child’s welfare, and the child lives in the same home as both parents. After a divorce, parents can often retain joint legal custody, even if the child lives mostly with one parent or the other.
According to state law, any joint custody arrangements must include specific instructions for consultation between parents on important decisions and residency of the minor child.
If parents have more than one child, the court could split the children between the two parents. This is rarely done—in most cases the courts won’t split siblings apart so long as there is another option. In exceptional cases, such as there being a child from a previous marriage or a large age gap between siblings, the court might be more willing to split custody between parents.
Sadly, some people just aren’t fit to be parents. It could be due to alcoholism, criminal behavior, or abuse, but in any case, the case courts will not leave a child in the care of a parent who seems abusive or negligent. In these cases, one parent takes legal and physical custody of the child, while the other parent loses those rights.
Unless the other parent is found to be abusive or negligent, the parent with sole custody must still make arrangements for the child to have time with the other parent. The statues provide no guidance for what constitutes “appropriate parenting time,” and this is a frequent cause of custody battles.
Learn about the relevance of drug use in divorce in Coparenting Through Divorce: Drug Use, Drug Testing & Family Court.
How does joint custody work?
Again, parents can share joint physical custody, joint legal custody, or both. If parents share both, then it is common for their child to live with one parent during the school week and with the other the remainder of the time. The parents consult with one another regarding major decisions and collaborate to parent their child as best they can despite the divorce.
Joint custody obviously requires a great deal of civil and constructive communication between parents, and not every divorced couple is capable of this.
Can we make the joint custody arrangement without a lawyer?
It’s highly recommended that you speak to an attorney and file a motion with the court if you want to change the child custody arrangement set by the court. Of course, you have the right to represent yourself pro se if you wish, but be forewarned: the courts won’t make special accommodations for you as a layperson, and you will be expected to follow the same procedures as a lawyer.
If you and your Ex try to change the custody arrangement without going to court, this can be problematic in that if either of you decide not to follow your new arrangement, the new arrangement cannot be enforced by the court. In fact, it is the person insisting on the new arrangement that will be found in the wrong by the family law judge, who knows only about the original arrangement.
Find the best lawyer for your joint custody case
Family law is a highly specialized area of practice, and laws vary state-to-state. In New Jersey, custody disputes are settled in separate courts from other legal matters by dedicated family court judges. Even if you and your Ex seem to agree on most things and believe that you can make joint custody work, you need to find an experienced family law attorney in your area who can help you craft an arrangement that works for your family and get that arrangement approved by the court.
Veronica Baxter is a blogger and legal assistant to Katherine K. Wagner, Esq. Katherine practices divorce and family law in Somerset County, NJ.
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