People preparing for divorce in New Jersey face a lot of uncertainty. It can be difficult to reach an agreement about key divorce matters with a spouse when a relationship is at its worst point. Spouses may disagree about property division matters, but nothing makes people more emotional than issues related to their children. The idea of a highly uneven custody arrangement may leave some people frightened to even consider divorce.
When people know what to expect from the divorce process, they may feel more confident about extricating themselves from a toxic situation. What typically happens in New Jersey when parents need to share custody?
The courts keep a focus on the kids
In any litigated custody matter, a judge has to follow state statutes when dividing parenting time and the authority to make decisions about the children. The rules in New Jersey require that a judge focus on the best interests of the children. Typically, there is a desire to preserve both parental relationships. Judges usually try to divide both decision-making power and parenting time between the adults. They want the adults to cooperate for the benefit of the children.
However, if there is evidence showing that one parent might endanger or mistreat the children, then that could affect the custody determinations a judge makes. Parents who have evidence of abuse, addiction, or neglect that could endanger their children can potentially request sole custody or other arrangements for the protection of their children.
New Jersey Law and Child Custody Matters
The table below highlights the considerations and steps the New Jersey courts take when evaluating custody matters.
New Jersey Child Custody Overview (Under N.J.S.A. 9:2-4)
| Category | Explanation | Legal Reference / Notes |
|---|---|---|
| Governing Law | Custody determinations are governed primarily by N.J.S.A. 9:2-4, which emphasizes the best interests of the child. | N.J.S.A. 9:2-4(a) – Courts must order custody arrangements that promote the child’s welfare and happiness. |
| Types of Custody | – Legal Custody: Right to make major decisions about the child (education, health, religion). – Physical Custody: Where the child primarily resides. | N.J.S.A. 9:2-4(b) – Courts can award joint or sole legal/physical custody. |
| Joint Legal Custody | Both parents share decision-making responsibilities, regardless of where the child lives. | Favored unless there’s evidence joint decision-making is harmful. |
| Sole Legal Custody | One parent has the right to make all major decisions. | Typically awarded when one parent is unfit or unable to cooperate. |
| Physical Custody Options | – Primary Residential Custody: One parent’s home is the child’s main residence. – Shared Physical Custody: Child spends significant time in both homes. | Courts may tailor time-sharing based on practicality and child’s best interests. |
| Best Interests Factors | Courts evaluate 14 statutory factors, including: – Parents’ ability to agree/cooperate – Child’s needs and stability – Quality of home environment – History of domestic violence – Fitness of parents – Employment responsibilities – Distance between homes | N.J.S.A. 9:2-4(c) – All factors must be weighed; no single factor controls. |
| Preference of the Child | If mature enough, a child’s preference may be considered but is not binding. | Based on age, intelligence, and reasoning. Usually considered around age 12+. |
| Domestic Violence Considerations | Evidence of domestic violence weighs heavily against awarding custody to the offending parent. | N.J.S.A. 2C:25-29; see also Cesare v. Cesare, 154 N.J. 394 (1998). |
| Parental Cooperation | Courts favor parents who cooperate and encourage the child’s relationship with the other parent. | Hostility or alienation can harm a custody claim. |
| Temporary (Pendente Lite) Orders | Courts may issue temporary custody orders during divorce or custody proceedings. | Intended to maintain stability until final order. |
| Modification of Custody | Custody orders can be modified upon a showing of changed circumstances affecting the child’s welfare. | See Sheehan v. Sheehan, 51 N.J. Super. 276 (App. Div. 1958). |
| Relocation (Moving Out of State) | A custodial parent must obtain court approval or consent of the other parent before relocating the child out of state. | Governed by Bisbing v. Bisbing, 230 N.J. 309 (2017). Court applies best interests test. |
| Unmarried Parents | Both parents have rights once paternity is established; custody is decided under the same best interests standard. | See N.J.S.A. 9:17-40 et seq. (Parentage Act). |
| Mediation Requirement | In most counties, custody/parenting time disputes must go through mandatory mediation before trial. | N.J. Court Rule 1:40-5. |
| Parenting Time (Visitation) | Noncustodial parent generally entitled to frequent and continuing contact, unless not in child’s best interest. | Denial of parenting time requires clear and convincing evidence of harm. |
| Grandparent Visitation | Allowed under specific circumstances if in child’s best interest. | N.J.S.A. 9:2-7.1; Moriarty v. Bradt, 177 N.J. 84 (2003). |
Divorce and Child Custody FAQs for New Jersey
What are the grounds for divorce in New Jersey?
You can file for divorce based on either no-fault or fault-based grounds. The most common no-fault ground is irreconcilable differences for at least six months. Fault-based grounds include adultery, extreme cruelty, desertion, addiction, institutionalization, imprisonment, and deviant sexual conduct.
How long do you need to live in New Jersey to file for divorce?
You or your spouse must have lived in New Jersey for at least one year before filing, except for cases involving adultery or if the cause for divorce occurred in New Jersey. In those situations, residency requirements may be shorter.
How does New Jersey determine child custody?
New Jersey courts base custody decisions on the best interests of your child. Judges consider factors including your relationship with the child, your ability to provide stability, the child’s needs, your fitness as a parent, the quality of time spent with the child, employment responsibilities, and the child’s preference if they’re of sufficient age and maturity.
What’s the difference between legal and physical custody?
Legal custody refers to your right to make major decisions about your child’s education, healthcare, and religion. Physical custody determines where your child lives. You can share both types jointly with your ex-spouse, or one parent can have sole custody of either or both types.
Does New Jersey favor mothers over fathers in custody cases?
No. New Jersey law does not favor either parent based on gender. Courts evaluate both parents equally and make decisions based solely on what serves your child’s best interests.
How is child support calculated in New Jersey?
New Jersey uses specific child support guidelines based on both parents’ income, the number of children, and parenting time. The court considers your gross income, mandatory deductions, health insurance costs, childcare expenses, and the amount of overnight visits each parent has with the child.
Can you modify a custody order after it’s finalized?
Yes, you can request a modification if there’s been a substantial change in circumstances affecting your child’s welfare. This might include relocation, changes in your work schedule, concerns about the other parent’s fitness, or your child’s changing needs as they grow older.
How does New Jersey handle parental relocation?
If you want to move out of state or significantly far within New Jersey with your child, you must either get your ex-spouse’s consent or court approval. You need to provide written notice and demonstrate that the move serves your child’s best interests, not just your own convenience.
What happens to marital property in a New Jersey divorce?
New Jersey is an equitable distribution state, meaning the court divides your marital property fairly, though not necessarily equally. The court considers factors like the length of your marriage, each spouse’s economic circumstances, contributions to marital property, and each person’s earning capacity.
How long does the divorce process take in New Jersey?
An uncontested divorce where you and your spouse agree on all terms can take as little as a few months. A contested divorce involving disputes over custody, support, or property typically takes one to two years, depending on the complexity of your case and court scheduling.
Parents can take control of the process
It is not necessary to immediately hand over decision-making authority to a family law judge. Parents in New Jersey always have the option of cooperatively reaching terms for their parenting plans. So long as they can resolve their disagreements either through direct negotiations or possibly mediation sessions, parents can proceed with an uncontested custody case where they set all of the terms themselves. A judge can then review and approve the proposed terms set by the parents.
Understanding the New Jersey approach to custody matters can be beneficial for those worried about how the end of a marriage might affect their family. Parents generally need to prepare for shared parenting arrangements or gather evidence to prove that sole custody would be best for the children.
Request a Free Child Custody Consultation with Divorce Lawyers Cosner Law Group
Put over 50 years of New Jersey child custody law experience to work for you and your family. Request a free consultation with Cosner Law Group’s East Brunswick, NJ offices by calling (732) 937-8000 or scheduling your free consultation online.