Custody & Visitation Rights FAQs
Courtesy of NJ lawyer, Theodore Sliwinski, Esq.
- What are the different types of custody?
Custody can be divided up into two parts, legal custody and physical custody. Legal custody means that the parent has the ability to make the major decisions about the child’s health, education, safety and welfare. Physical custody refers to which parent the child lives with.
2. What are the factors that the court considers during a custody case?
The primary standard that the court uses to determine a custody case is always, “what is in the best interests of the child.” The court has to determine many factors when it makes this decision.
Some of the factors that are considered when the court makes a custody determination are: (1) emotional and physical environment; (2) the personal safety of the child; (3) moral atmosphere of the household; (4) the mental and physical health of the parents; (5) the age of the children; (6) the age of the children; (7) preference of the child; (8) the prior behavior of the parents, including any history of abuse; (8) the ability of each parent to care for the child; (10) and the importance of religious upbringing within the family.
3. What type of custody arrangements can a court impose?
Once a court makes a custody determination, there are several possible custody arrangements that a court may impose. The court may impose: (1) sole physical or legal custody; (2) sole physical custody with joint legal custody; (3) joint custody. The term “joint” does not mean equal. Instead, “joint” means that the parties equally share the obligation to raise the child.
4. What is the most traditional custody arrangement that a court imposes?
The most traditional arrangement is for the parties to share joint legal custody, and the wife/spouse in most cases gets physical or residential custody. When one parent receives custody, the other parent receives visitation rights. This parent is also referred to as the “non-custodial parent.” The amount of visitation rights that a parent receives varies in each individual case. Visitation rights cases range from supervised visitation at the court house, to splitting parenting time equally.
5. Are the children’s wishes considered by the court in a custody dispute?
In many cases, the court will consider the children’s wishes if they believe that they are of an age to make an intelligent decision. The court will then interview the child in chambers. The court will then ask the child if they have a preference with regard to custody. This type of interview with the child is called an “in-camera interview.” The goal of this type of interview is to assist the court to determine what the child’s wishes are. In many cases, younger children are often influenced by the parent with whom they live with. Therefore, sometimes a young child’s answers may be skewed. Alternatively, older children are much less influenced by their parents. A court always takes into consideration the age of the child when it determines how much weight to place on the outcome of the interview.
6. How can a person apply for custody of their child?
The first step that a person must take in a custody case is to file a complaint or a motion with the court. Once the custody application is received by the court, it will then be reviewed to determine if the case should be sent to custody mediation. Each county has their own custody mediation procedure. However, in almost every county, a custody case is first sent to mediation to try to work out a reasonable compromise. In addition, all parents are required to take a parental education class. These classes are run by the county, and there is only one session. If the custody mediation is unsuccessful, then the court will then order a hearing to determine the issues of custody and mediation.
7. How is custody determined in a case where the parties are not married?
When the parties are not married, this type of case is referred to as a non-dissolution case. This type of case is given a FD docket number. A custody dispute for people who are not married is treated the same way as it is for married couples. The parties are also referred to custody mediation. Moreover, in FD cases the issue of paternity also frequently arises. In many cases, the father if he contests paternity may be required to take a paternity test. This is a relatively simple procedure. The paternity test(s) is usually given by Lab Corp. These tests consist of a lab tech taking a swab on the inside of a person’s mouth. The results are usually provided within three to four weeks.
8. What is a Guardian Ad Litem, and when is one appointed?
A “Guardian Ad Litem” is an attorney who is appointed to represent the children themselves, and not the parents in a divorce case. Usually, a guardian ad litem is only appointed in the very nasty cases. A court usually appoints a guardian ad item when they believe that the children need their own lawyer to protect their interests. In many divorce cases, the parents become so enraged that the court feels compelled to appoint a guardian ad litem. The downside of appointing a guardian ad litem is that the parties have to split the costs of hiring the lawyer/guardian ad litem.
In summary, a custody case can be a wonderful opportunity for a family to blow all of their money and life savings. If a guardian ad litem is appointed, then the family will have to pay for three lawyers; the wife’s lawyer, the husband’s lawyer, and the guardian ad litem. If the case drags on, then legal fees can fast approach the $20K to $35K range. If at all possible, I strongly advise all parties to try to work out a custody arrangement that everyone can live with. Custody disputes are really just a miserable experience. In many custody cases, a family often blows all of their savings, and they also become heavily in debt to their lawyer(s). It is not uncommon at all for a person to file for bankruptcy after they have endured a bitter custody case. I hear of these horror stories all of the time.
9. What kind of assessments does the court make of the parents?
In many custody cases, one parent alleges that the other parent is an unfit parent, and they should not have custody. In this type of case, the court will order an evaluation of the parties. These types of evaluations are called a best interest investigation, a risk assessment, and/or a psychological evaluation.
A risk assessment is an evaluation that is provided by the court on request. A risk assessment is conducted by the County Probation Department. A risk assessment is usually requested when one parent is alleged to have an alcohol or drug problem. A risk assessment is also often requested when one parent has a history of sexual abuse. These types of cases are the nastiest.
For a risk assessment, a member of the Probation Department will go to the parties homes and determine if it is safe for the child to have visitation there. Many courts are just overwhelmed. In some counties, it can take many many months for a risk assessment to be completed. In other less backlogged counties, a risk assessment is completed in a timely fashion.
Another type of evaluation conducted by the courts is called a “best interest investigation.” This type of investigation is also performed by the County Probation Department. There is no charge to the parties for the court to conduct this type of investigation. This type of investigation looks into the character and fitness of the parents, the economic condition of the family, and the financial abilities of the parties.
Finally, a court can also order a psychological evaluation of the parties. Whether a court grants an application for a psychological evaluation will depend on the individual judge. A psychological evaluation is costly, and the parties must also pay for this expense.
10. What if there is a custody order from another state other than New Jersey?
In many custody cases, there are different states of jurisdiction that are involved. It is not uncommon for a spouse to leave New Jersey once he or she encounters marital problems. In many cases, a person may obtain a custody order from another state. If there is a custody order from another state besides New Jersey, then a determination must be made if the order will be enforced.
In New Jersey, our courts do not always give “full faith and credit” to a sister state’s custody decree. The reason for this policy is that custody judgments involve continuing relationships, and they are always subject to changing conditions. When a New Jersey court reviews an out of state custody order, it must look to the basis of the court’s jurisdiction, the location of the child, and the court’s access to necessary info about the child and its present custodian. Moreover, the New Jersey court will not enforce an out of state custody order if it is not in the best interests of the child.
11. What is the UCCJA?
The UCCJA stands for the Uniform Child Custody Jurisdiction Act. The purpose of the UCCJA is for states to cooperate with one another in placing children up for adoption. The UCCJA permits jurisdiction to be exercised by the home state or a state having a significant connection with the child.
The UCCJA was enacted to allow the states to avoid jurisdictional competition in bitterly contested custody disputes. It also ensures that custody cases are litigated in the state that has the closest connection with the parties and the child. Under the UCCJA, a New Jersey court has jurisdiction to make a child custody determination if the child resides in New Jersey at the time of the filing of the custody case, or if New Jersey has been the child’s home state within six (6) months before the commencement of the case. The court will also assume jurisdiction of the custody case if it is in the child’s best interests, if one parent has significant ties to New Jersey, or if there is substantial evidence regarding the child’s present or future care in the Garden State.
Under the UCCJA, there are four standards that are used to determine if an alternate jurisdiction should be granted. The four standards are: (1) the state is or has been, within six months of the custody case, “the home state” of the child; (2) it is in the best interests of the child to proceeds in the former state because the child and the family have a significant connection there; (3) the child is present in the jurisdiction and is abandoned or threatened with harm; and (4) no other state has jurisdiction and it is in the best interests of the child that the former state entertain that dispute.
12. What happens if there is a custody dispute that involves different countries?
A custody dispute that involves different countries is becoming more common all of the time. I am sure that many people have heard of the case wherein a man marries a “hot looking” latina woman. Quite frequently, once marital problems arise, the latina women moves back to South America, Central America, the Dominican Republic, or to the Caribbean. Moreover, those arranged marriages from India often are a disaster. I have heard of many cases wherein the Indian wife leaves her husband and goes back to India. Quite often, the Indian wife also leaves with the child(ren).
The plain truth of the matter is that the world is getting smaller as each generation passes. In the near future, inter-country custody disputes will be just as common as interstate custody disputes.
The UCCJA also applies to international custody disputes in a case where the child has been removed from the United States. If a child is removed from New Jersey to another country, then a person can apply to have any international custody dispute decided by a New Jersey Court. However, it may be difficult to have a New Jersey custody order to be enforced in another country.
13. What is the Hague Convention?
On October 25, 1980, an international convention was held at the Hague. Here, numerous resolutions were adopted that concerned the wrongful removal of children from their home country. The resolutions of the Hague Convention was ratified by the United States in 1988. A parent has one year, as per United States law, to apply under the Hague for the wrongful removal of a child.
Under the Hague Convention, a parent may also oppose the return of a child. The parent has the burden of establishing, by clear and convincing evidence, that one of the following exceptions apply:
1. The person was not actually exercising custody rights at the time of the removal or retention or had acquiesced to the removal or retention;
2. There is a grave risk that his or her return would expose the child to physical psychological harm and place the child in an intolerable situation;
3. The child objects to being returned.
14. What if a spouse has consent from the other spouse to move to another country, is it still possible for one spouse to compel the other to move back to the United States?
The party who remains in the United States can apply to the court for a modification of the custody agreement. However, before this application can be made, the person must satisfy the four requirements of the Hague Convention. The party who still resides in the United States must prove that: (1) both countries participate in the Hague Convention; (2) that the child was a habitual resident of the United States immediately before the removal; (3) that the child is under the age of 16; and (4) that the removal of the child was wrongful. If the person who still lives in the United States can prove these four requirements, then he can make an application in the foreign country where the child is now residing for custody.
15. When will a New Jersey Court recognize a foreign country’s decision regarding custody?
A New Jersey court will recognize a foreign country’s decision regarding custody, provided that the foreign country had adequate jurisdiction over the case, the New Jersey spouse had adequate notice, and the other country considered the “best interests” of the child.
16. How can a custody arrangement be modified?
Once a custody arrangement is established, then either party can make an application to modify the custody arrangement if there is a “change of circumstances” which has occurred from the time of the original custody decision. The party who applies for a change in the custody arrangement has the burden to prove that there is a sufficient change of circumstances to justify granting the application. It is important to emphasize that a person must have credible evidence to convince a court to change custody. It is insufficient evidence to base a change of custody based a person’s beliefs that he or she could raise the child better.
The party who is making the application for a change of custody will have to prove to the court that something significant has happened which the court has not considered when it made the original custody decision.
The courts are much more liberal when it considers applications for an increase in visitation time. In most cases, if there is a bitter visitation dispute, the case is referred to custody mediation. The courts are also much more reasonable in considering applications to modify visitation schedules. The courts will do everything they can to try to have the parties cooperate and formulate a reasonable parenting plan.
17. Can a custodial parent move out of the State of New Jersey with the child?
When a custodial parent wants to move out of New Jersey, that parent must either have the consent of the other non-custodial parent, or obtain the court’s permission. If the non-custodial parent does not consent to the relocation, then the court becomes involved. If the non-custodial parent does not consent to the child’s relocation, then the custodial spouse must file an application to the court to relocate. If the custodial parent moves without first obtaining the court’s permission, then he/she could be breaking New Jersey law.
18. What must be proved to obtain court permission to remove a child from the State of New Jersey?
To obtain court approval to remove a child from the state of New Jersey, a person must be able to show (1) a good faith reason for the move; (2) that the move will not adversely affect the non-custodial parent’s visitation, and (3) that it is in the best interest of the children to remain with the custodial parent and move out of the state.
Additionally, if moving to a new state would affect the existing custody arrangement, the party seeking to remove the child must also show it is in the child’s best interest to move.
In my experience, the courts mostly grant relocation motions. However, the custodial parent must insure that the parent who still lives in New Jersey has adequate visitation rights. Quite often, the courts will require that the moving parent be required to pay for any transportation costs for the child to go back to New Jersey to visit with the other parent.
In many cases, there is just no solution to resolving a relocation motion/application. Initially, the court will refer a relocation application to custody mediation. Custody mediation is not binding on the parties. If the parties still can’t agree on a reasonable settlement, then the relocation application will be set down for a plenary hearing. This type of plenary hearing is called a Holder hearing.
19. What type of visitation rights does a parent have in New Jersey?
In the State of New Jersey a parent has a constitutional right to see his/her children. Before any parent can be denied of visitation rights, it must be shown that having the child in the parent’s presence would cause physical or emotional harm to the child. Moreover, it must be proven that there are no other alternatives than completely terminating visitation.
20. What type of visitation schedules are available in New Jersey?
There is an endless amount of different types of visitation schedules. Each couple can arrange a visitation schedule that can suit their own lives and their work schedules. The standard visitation plan is for the husband to have visitation every other weekend, and on Wednesday evenings. The visitation on the weekend normally starts on Friday at 6:00 p.m. and ends on Sunday evening at 6:00 p.m. The visitation on Wednesdays usually starts and 6:00 p.m. and ends at 9:00 p.m.
A new trend in family law is to have shared residential custody. This means that the children live with both parents. In my opinion this is really a scam that is used by many ex-husbands. This type of shared custody is primarily a ploy by ex-husbands to reduce their child support obligations. The more overnights that the husband has will translate into a lower child support award.
I always recommend to all of my clients to reject a shared parenting plan. Furthermore, I always advise my clients to permit the non-custodial parent to see their children as much as possible. However, I don’t permit my clients to agree to a shared parenting plan because in most cases it is just a ploy by husbands to pay lower child support.
21. What is supervised visitation?
In some cases it may be appropriate for a parent to have supervised visitation with the children. In some cases, the parent may have a drug or alcohol problem, and if they have visitation with the children alone, then they could corrupt them.
Moreover, in some cases, the non-custodial parent may have a conviction for a sex-related charge. In these types of situations, the courts will often order that all visitation must be supervised.
Supervised visitation can take place at the locate county court house. The Sheriff Department will supervise visitation normally on the weekends. The courts only order court supervised visitation in the most extreme cases. There are only so many sheriff offices, and there are a limited amount of cases that they can supervise.
Therefore, in the vast majority of the cases, the court will order that a parent or a relative of the non-custodial parent be appointed as the supervisor. Basically, this means that the non-custodial parent can’t visit their children unless that supervisor is present.
22. My ex-spouse is now living with another person, can I request that visitation be modified so that the new companion cannot spend the night where the children are located?
When a parent starts a new romantic relationship, the former embittered spouse often tries to have the visitation modified so that the new companion cannot spend the night with the children. The former spouse will argue that the children are too young to understand the new situation, and that it will cause emotional harm to them. The court will then assess if there is any the emotional impact to the children if they visit their parent with his new girlfriend or wife. The court will also consider the stability of the new relationship, the ages of the children, and the relationship of the children with the new companion in making this determination.
23. What can a person do if they continually fight with their former spouse during the pick up and drop off of the children?
In many cases, the parties actually have physical fights when they drop off and pick up the children during the visitation. This type of scenario is especially enhanced if the wife moves in with another boyfriend, or if the husband shacks up with a new girlfriend. Given the high cost of living in New Jersey, this type of situation occurs all of the time.
If the parties can’t control their emotions, then the court will order that the pick up and the drop off of the children must occur at the local police station. However, in many cases the people are still berserk, and they still engage in violence even though they are in the police station.
In my opinion, people are generally nuts. Having the children picked up and dropped off at a police station really is in many cases the only avenue available to prevent the parties from killing each other. Nonetheless, a nasty visitation dispute is a great way to ruin a kid’s childhood.
24. What can be done if a party fails to comply with the visitation schedule?
A common problem with visitation is that one party fails to comply with the visitation schedule. Visitation schedules are derived from court orders or judgments of divorce. Therefore, if a person consistently fails to comply with a visitation schedule then they can create a real mess for themselves. A court can sanction a parent with fines if they consistently fail to comply with a visitation schedule.
In some cases, an embittered former wife becomes so enraged that she does everything within her power to deny the husband visitation rights. This type of scenario often occurs when the ex-husband leaves his former wife for another woman. The world is a nasty place, and this scenario happens quite frequently. The embittered spouse often convinces the kids that dad is a reincarnation of “Satan.”
It must be emphasized that a former husband has the right to visit with his children, regardless of the circumstances that led to the dissolution of the marriage. In some extreme circumstances, the court will even transfer custody if a parent is consistently denied visitation rights. This measure is only used as a measure of last resort.
25. Does a child still have to have visitation his parent, if he does not want to see them?
When a child does not want to see the other parent, there are a few factors to consider in pursuing visitation. If the child is 16, then the child is old enough to make an intelligent decision as to whether he/she wants to visit with their parent. However, a custodial parent has a legal duty to encourage visitation with their former spouse. In short, a custodial parent should never bad-mouth their former spouse to their children, and try to poison their relationship.
If the children are young, then the courts are inclined to force the child to have visitation with their parent, even if they do not want to. It must always be remembered, that a parent has a constitutional right to have visitation with his/her child. It is very unlikely that a court will terminate visitation entirely. Most courts believe that it is in the child’s best interest to have two parents jointly raise him or her.
26. Do grandparents have visitation rights?
In many divorces, the parties hate each other so much that they try to get back at each other by refusing to permit the grandparents to visit with the children. For many of our senior citizens, seeing their grandchildren is the most cherished part of their life. In my opinion, in most cases the courts will grant grandparents visitation rights even if the custodial parent objects.
Grandparent visitation is a very rapidly expanding field of law. The courts are very reluctant to deny a grandparent the right to visit with their beloved grandchildren. In general, grandparents must apply for visitation with grandchildren. The grandparent must file motion of complaint for visitation with the court.
The court will then refer the case to custody mediation. At the mediation, a court-appointed mediator will try to get the parties to agree on a visitation schedule. If the mediation session is not successful, then the case will be referred to a judge. The court will then formulate a reasonable visitation schedule.
In only the most extreme cases will grandparent visitation be denied. In most cases, it is in the best interests of the children to have visitation with all of their grandparents. Once a visitation schedule has been established, it must be modified like any other visitation schedule.
27. Does a stepparent have a statutory right to have visitation with their stepchildren?
Currently, there is no statutory right for a stepparent to have visitation with their stepchildren. However, each application for a stepparent to have visitation with their stepchildren is decided on a case be case basis. If a stepparent has formulated a relationship with the stepchild, and it the application is made in good faith, then in most cases the application for visitation will be granted. The stepparent has the burden to demonstrate to the court that there is a relationship between him/her and the child which includes reliance for financial support or love and comfort.
28. Can a parent’s visitation rights be terminated completely?
In New Jersey a parent has a constitutional right to have visitation with their children. Therefore, only in the most rarest of circumstances will visitation be terminated completely. The only possible cases where visitation will be terminated is if the parent is a habitual drug offender, or a sex offender. The court may terminate visitation because they do not want the children to be corrupted or harmed.
29. Can a parent’s new spouse adopt her child?
In many cases, a woman remarries after she gets divorced. Thereafter, she may lose contact with her prior husband, and the father of her children. Unfortunately, in many cases the non-custodial parent does not pay any child support, and he fails to develop any type of relationship with his children.
A parent’s new spouse may only adopt the stepchildren if the former father’s rights have terminated. Termination of a spouse’s parental rights may be done by consent of the former father or by a court order.
30. What happens if a parent kidnaps a child by taking him out of state?
In many cases, a distressed parent may “kidnap” a child by taking him/her out of New Jersey. If this happens, then New Jersey courts have jurisdiction. A New Jersey court has parens patriae jurisdiction over the custody and maintenance of the children who have resided in New Jersey for five years or more. If the children have lived most of their lives in New Jersey, then a New Jersey court would exercise jurisdiction is such a case. The public policy behind such a rule precludes the removal of children from one state to another without any prior judicial recourse.
31. How can a parent’s rights be terminated?
The termination of parental rights makes the parent and child relationship obsolete. It severs all of the legal ties between the parent and the child. To terminate a person’s parental rights, a petition to the court must be filed based upon the best interests of the child. The petitioner must prove that; (1) the child’s health and development have been or will continue to be endangered by the parents; (2) that the parent is unable or unwilling to eliminate the harm; (3) that there have been attempts made to correct the circumstances; and (4) that termination will not do mare harm than good. These four criteria must by proven by clear and convincing evidence. In most cases, applications to terminate parental rights must be made by DYFS.