As a parent going through a divorce, special considerations must be made when deciding on custody and parenting time. In this podcast, Abigale M. Stolfe – a Toms River divorce attorney – outlines the top issues you may face as a parent going through the divorce process and offers useful tips. She discusses common post-divorce living arrangements for children; factors courts consider when granting custody; whether or not a custody agreement can be changed; third-party and international custody rights; and much more.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Abigale M. Stolfe, Family Lawyer
Abigale M. Stolfe is a family law attorney at Stolfe Zeigler, a boutique family law firm in Toms River, NJ. Abigale is known for effectively litigating, negotiating, and mediating complex cases, including child support, child custody, and visitation/parenting plans. She vigorously pursues creative, fair, and flexible solutions to divorce-related children’s issues, while protecting your and your children’s best interests.
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Read the Transcript of this Podcast Below.
How does a divorcing couple decide whether sole custody or joint custody is best for their family?
Sole custody means that one spouse has residential custody of the child as well as the right to make all of the day-to-day and major decisions for the child without any consultation. The custodial parent also has the right to make decisions on the child’s health, education and welfare. The other party is entitled to visitation.
Joint custody is composed of two elements: legal custody and physical custody. Under a joint custody arrangement, legal custody, the legal authority and responsibility for making major decisions regarding the child’s welfare, is shared at all times by both parents.
Physical custody is the logistical arrangement where the parents share the companionship of the child. Under that arrangement, they’re responsible for the day-to-day decisions and they have to alternate in accordance with the needs of the parties and the children.
What are the most common types of arrangement for children’s living situations post-divorce in New Jersey?
What I instruct my clients to consider is not what other families do, but instead what works for their family. So in one situation where you have a two rotating schedule employees such as nurses, EMT workers, or police officers who work shifts, they may need a completely different arrangement than someone who works 9 to 5 commuting to and from New York City. It’s best to look at your own individual circumstance and not what some other couple or a friend of yours might be doing.
What factors do New Jersey courts consider in granting custody?
New Jersey custody determinations are guided by Statute NJS 9:2-4, which has a variety of factors, and these factors are defined but not limited. Now, what that means is the court looks at these factors, but is not limited to only these factors. Such factors are the communication and cooperation of the parties; the willingness to accept custody and any historic unwillingness to allow parenting time without a substantiated abuse. The court will look at the interaction and relationship of the child with both parents as well as siblings; any history of domestic violence, and the safety of the child or either parent from physical abuse by the other parent. So we not only look at whether the child was abused, but whether there is a history of physical abuse between the spouses.
The court also considers the preference of a child when the child is of sufficient age and capacity to reason. There is no defined number in New Jersey for an age for when that can occur. We look at the actual capacity of the child; whether or not the parents can meet the needs of the child in their new home; and the stability of that environment being offered.
The quality and continuity of the child’s education – is one party looking to take custody and move the child far away for instance; the fitness of the parent; the geographical proximity of the parent’s home, again looking at the logistical day-to-day care and ability for both parents to perform in that function; the extent and quality of the time spent with the child prior to and subsequent to the separation. So, is one parent only getting involved after the divorce is filed, but had never been previously involved; the employment responsibility of both parties, both actual – meaning historic and anticipated; the age and number of the children, and any other fact that the court might look at that’s relevant to those specific parties and that specific family.
How much weight will the court give regarding a child’s wishes on which parent they want to live with? Does it make a difference if the child is a teenager versus a five-year-old?
The court when weighing the child’s preference will look at the child’s age, the child’s mental capacity and development. It also looks at the child’s emotional capacity and development and the litigation in and of itself, because as much as parties want to say that they have not allowed their child to be involved in the litigation, the reality is that no child is exempt from turmoil between their parents, regardless of whether the parents live together, or whether the parents think that they’re sheltering the child or not.
Typically, when a court weighs the preference of a child, the court does look at the litigation, because that’s going to heavily tilt that scale against considering only the child’s preference. Now if the child is 16 then the weight may carry a little bit higher even if there is a very litigious history. But if we’re talking about an 8, 9, or 10-year old, that is definitely going to be very critically analyzed.
Do parents have to resolve all of their custody issues before finalizing their divorce in New Jersey?
Typically when you get divorced, if you do not have all of your custodial issues resolved then you’ll need to have what’s called a plenary hearing, which is a limited hearing on this particular issue. That is very uncommon and atypical.
Can a custody agreement be changed? How and what will be a reason for changing it?
A custody arrangement can be modified post-divorce based upon a change of circumstances. That change can be for a variety of reasons, such as: one party is moving or one party’s job has changed, or the child now has different needs. If you entered into an agreement and the child was 2 years old, and is now 8, that passage of time could serve as the change in circumstance. Custody is never a closed door. It’s always open to modification. But with that said, you can’t modify it every year, or every six months and make little changes. There has to be a significant change of circumstance.
Are you saying that primary parenting rights can be taken away from the parent to whom they were originally assigned, and awarded to the other parent?
The designation of the primary custodial parent can be modified if there is a substantial change in circumstance to warrant that modification. What we typically see, however, is that parties go into do what we call minor modifications. For example, when the child was 2, they weren’t in extracurricular activities and now they’re 8 and they’re in three activities. That creates a change of circumstance that warrants a change in the parenting schedule.
When you’re talking about shifting the primary residential parent, this is typically a much more in-depth and substantial process, because presumably it’s objected to, and in that case there is going to be a trial. That’s going to be a much more involved process than a minor modification.
How does the judge determine whether one party requires supervised visitation with the children?
Supervised visitation is typically utilized in cases where one party presents a risk to the child, most typically in cases of addiction abuse – whether it be alcohol, drugs, or sex. That’s typically when you would see a supervised situation. And again, this always goes back to the statutory factors.
Does one parent need the other parent’s permission if they wish to move to another state and take the children with them?
Under the statute neither party can relocate the child out of the jurisdiction without either consent or a court order. That would be a substantial change in circumstance which would warrant: A) a modification of parenting time, and B) potentially the modification of the custodial designation. Typically, what happens is if one party is seeking to relocate, they would have to petition the other, and assuming there is some agreement, they would have to petition the court and establish the substantial change in circumstance to justify that relocation. Usually we see those circumstances in the case of a remarriage, when you’re moving to the home state of your new spouse, or a job transfer in which case you’re relocating out of the state in order to facilitate the continuation of your employment responsibilities.
There are other instances when people seek to relocate such as being closer to their family, or maybe the non-custodial parent has very little or chooses not to exercise their parenting time in which case the custodial parent may want to be closer to the extended family who can help them with the child care responsibilities. These are all potential reasons for relocation. But again, to get that relocation into the statute, you would have to have an agreement or a court order.
Under what conditions will a judge grant a request for a visitation with or even custody of a grandchild?
Grandparent visitation is granted very sparingly. Typically what happens in a grandparent visitation case is the grandparents have to show that the child will be harmed by not continuing the relationship they once had with the grandparents – not that the grandparents themselves will be harmed. There is often confusion around this. Typically, grandparent visitation is granted in the cases of older grandchildren, not infant or young grandchildren. And again, the premise being that the harm is to the child.
Is custody and child support determined the same way for unwed parents as it would be for their legally married counterparts?
Whether you’re married or unmarried, a child is entitled to parenting time under Statute 9:2-4, and a relationship with both parents. Our state’s policy also provides that parents should have an equal opportunity to raise their child. That does not necessarily translate into 50/50 timeshare, but it does translate into both parties having an active role in the rearing and raising of a child.
So given that our state is driven by the needs of the child, whether you are married or unmarried, the child’s needs are the same. The statute is the same in both cases as is the child support guideline. We have the New Jersey Child Support Worksheet where we set up the factors meaning, the parties’ incomes, any mandatory deductions, health insurance expenses, work-related daycare expenses, and that calculator provides a child support analysis for us. Again that calculator is used in both married, getting divorced, and unwed and seeking to determine parenting time and financial responsibility.