Children’s issues are some of the most sensitive matters in New Jersey divorce. In this podcast, a family lawyer from Bradley Beach explains how a judge makes decisions regarding child custody, relocation, visitation, and grandparents’ rights. Find out what factors a court takes into consideration when making some of the most important legal determinations of your life.
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Divorce Magazine Podcast: New Jersey Divorce Lawyer Amy Harris on Child Custody, Relocation, and Visitation
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speakers: Family Lawyer – Amy B. Harris. Matrimonial attorney Amy Harris of Keith, Winters & Wenning, LLC has more than 15 years of experience and practices family law exclusively. Located in Bradley Beach, she has been called to both the New Jersey and Pennsylvania Bars. For more information about Amy or her firm, please visit www.kwwlawfirm.com.
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What factors are considered in deciding what type of child custody is best for a particular family?
Harris: In New Jersey, the best interest of the children is the standard we focus on when trying to evaluate a custody determination. There are several factors we look at, including: the parents’ ability to agree and communicate regarding matters of the children; a parent’s willingness to accept custody; the interaction between the child or children and the parents; whether there's any history of domestic violence; the needs of the children; the stability of the home environments; employment responsibilities; geographical proximity of the parents’ homes; and other similar factors.
What are the different types of child custody in New Jersey?
There are two separate types of custody: legal and residential. Legal custody determines which parent is going to make the major decisions regarding the children's health, safety, welfare, and education. In general, it is best for parents to share legal custody so that there is a joint legal custody relationship, because it is in the best interest of the children to see their parents working together on matters related to their health, safety, welfare, and education.
Residential custody has to do with where the children are going to spend the majority of their time. Residential custody can be held by one parent with sole custody or the parents can have shared custody where the children spend equal time with their mom and dad.
How do courts determine the best interest of the children in suits that affect the parent-child relationship?
Harris: Best interest is determined on a case-by-case basis. In some situations, we don’t have factors such as geographical proximity or employment responsibilities that we have to focus on. Instead, there might be a special needs child who has a better relationship with either their mom or dad. We have to look at best interest on a case-by-case basis so that the right decisions are made for the child or children born of the relationship.
How much weight is a child’s opinion given regarding which parent he or she should live with? At what age does the court consider the child’s desires in a custody case?
Harris: It is determined on a case-by-case basis because children mature differently. There might be a 9-year-old who has a certain maturity level and is better able to express herself than some 12-year-olds, so the court takes a child's maturity level into consideration.
If the court decides to give weight to the child’s opinion, then he or she can be interviewed by the judge as requested by the parties, their respective attorneys, or via a custody evaluation done by a mental health professional. The child or children will be interviewed and the mental health professional will give a certain weight to their opinion depending on their maturity level and the circumstances of their particular case.
How can a parent improve his or her chances of getting custody of the children?
Harris: Getting custody of the children is not necessarily a game you need to win. We have to focus on what's in the best interest of the children and how they are going to be best served in terms of the roof they will be living under. As long as a parent is able to properly care for the child, can put a roof over their head, and has a support system in place, then both parents have an equal opportunity to be awarded custody of their children.
Are the courts still reluctant to grant custody to fathers?
Harris: Absolutely not. That's a very antiquated way of looking at custody. The case law and the statutes are gender neutral. We go into a divorce and custody case thinking not about sex and who is male or female, but about who has the best interest of the children at heart, will be better able to serve the children's interest, and be able to care for them in the best way possible.
Is there any difference between how custody and child support is determined when dealing with unwed parents rather than legally married parents?
Harris: There is absolutely no difference when we deal with custody or child support in a divorce situation versus when the parents are unwed. We are still bound by the same custody factors that would be used in a divorce situation and we are also bound by the New Jersey child support guidelines in terms of calculating child support.
Do all custody issues need to be resolved before a divorce can be granted?
Harris: Yes. In the State of New Jersey, all of the issues relative to a divorce must be resolved before the divorce is granted. There must be a settlement or a decision on child custody, both legal and residential, as well as child support.
Under what conditions will a judge grant a request for visitation with a grandchild?
Harris: There is a very specific statute in the State of New Jersey with regard to grandparents’ visitation. Under N.J.S.A. 9:2-7:1, grandparents can make an application for visitation with their grandchildren. It is rarely denied if the grandparents have had practice being a full-time caretaker for their grandchildren leading up to that point. If they were not full-time caretakers of their grandchildren up to that point, then there are other factors a court will take into consideration when evaluating whether grandparents should see their grandchildren.
As with a custody evaluation, we always consider the best interest of the children. If it is in the best interest of the grandchildren to maintain a relationship with their grandparents, there is a good possibility that the grandparents’ application will be granted.
If the custodial parent wants to move to another state with the children, can he or she do so without the other parent's permission? How would such a move affect visitation schedules?
Harris: A custodial parent is not able to relocate out of state with the child or children without the written consent of the other parent or a court order that permits the move. When a custodial parent makes an application to relocate out of state with the children, the result is a plenary hearing, which is a mini-trial where a judge considers a whole host of factors and makes a determination on whether it is in the children's best interest to relocate with that parent.
One of the most important factors considered is how the custodial parent will continue the child’s relationship with the non-custodial parent once the move takes place – which a custodial parent can demonstrate by coming up with a parenting time schedule that will allow for a continuation of the relationship. Depending on where the parent is moving, it might still be conceivable to have visits every other weekend or it might be a situation where the non-custodial parent will only see the child during winter breaks or over the summer. It comes down to whether the child would be okay without seeing the non-custodial parent as often as they would if they were living in the same state.
If a state awards child custody to one spouse, can the other spouse file for custody in a different state?
Harris: That falls under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which addresses where a case should be heard when dealing with parents who live in different states. If the state in which the child is residing makes a custody determination, then the non-custodial parent would have to make the application in that state. Under the UCCJEA, custody litigation must take place in the home state, which is defined as the state where the child has lived for six consecutive months prior to the commencement of the proceeding. If the child is in a state for six months or more, then that is where the non-custodial parent must go to file their application.
What options does a parent who has lost custody of their children because of an alcohol or drug addiction have in terms of regaining custody now that he or she is sober? What factors will the judge take into account when considering this request?
Harris: The judge will take into consideration what treatment that parent has received for their particular addiction. If they're unable to prove that they have gone through a treatment plan, then the custodial parent might claim that the other parent is not ready to see the children and is potentially subject to a relapse.
A non-custodial parent who has an addiction problem can inform the court that they've completed a parenting class to improve their parenting skills or that they have a support system in place to assist in caring for the children. Depending on how long it's been since the children have seen that parent, another option is to suggest a reunification therapist so that the children can start feeling comfortable again with the non-custodial parent.