Child Custody In New Jersey – Sole Legal Custody vs. Residential Custody

In New Jersey the word “custody” has two meanings: The first meaning has to do with “legal custody”, the second meaning has to do with “residential custody”. Legal custody can be either “sole legal custody” or “joint legal custody”.

Sole Legal Custody vs.  Joint Legal Custody

Legal custody refers to who will make the major decisions about the child’s health, welfare (including their religious upbringing), and education. Will the child’s mother and father both have equal rights and input into these important decisions? Or will only one parent be able to make these decisions without having to seek the other parent’s input and approval.

If both parents will have the right to have input on the major decisions affecting the child’s life then the parents are deemed to have “joint legal custody”. If only one parent will make the major decisions regarding the child’s life without having to seek input and approval from the other parent then that parent has “sole legal custody”.

In New Jersey most parents exercise “joint legal custody”, either because they agree to it, or because a judge orders this type of custody arrangement. In order for one parent to get sole legal custody of the child either the parents have to come to an agreement that only one parent will have sole legal custody (a written agreement is the only agreement that will be enforceable in court on this issue), or a court will have to order sole legal custody after a hearing.

It is very difficult to get a court to award one parent sole legal custody. In order to have a chance to get a judge to award sole legal custody, the parent seeking sole legal custody will have to show the judge that it is “in the child’s best interests” to have only the parent seeking custody making decisions regarding the child. In order to convince a judge that the other parent should not have the right to have equal input into major decision’s affecting the child’s life it will have to be shown that the other parent is either so derelict in their parental duties, or has taken actions that are so harmful to the child’s best interests that they should lose their right to have input on the major decisions in the child’s life. With that standard in mind you can imagine that a judge will only grant sole legal custody to one parent when they are presented with evidence that the other parent is the worst of the worst, (i.e., a parent whose conduct has demonstrated that they deserve to lose the right to have input and a say on the major decisions affecting their child).

Q: Can I Obtain Sole Legal Custody Without Going Through Court?

If you are seeking to have sole legal custody of your child, you may first want to explore whether the other parent will sign a detailed agreement giving you sole legal custody of the child. If they sign an agreement (which spells out their rights in detail and let’s them know what they are giving up) you may be able to accomplish the goal of getting sole legal custody without having to go through a formal court hearing. After the other parent signs you can file a motion to have the court enter a consent order granting you sole legal custody. You would attach the signed sole custody agreement as a certification to the motion. The judge may sign the submitted consent order as written, or he or she may have you come to court to provide testimony. However, the judge decides to handle your consent order, this is the least expensive, least time-consuming way to obtain sole legal custody.

Residential Custody In New Jersey

Residential custody refers to which parent has the child or children staying in their home overnight for the majority of evenings. The parent who has the child the majority of overnights is deemed the parent of primary residence (PPR). The parent who has the child less than the majority of overnights is deemed the parent of alternate residence (PAR). The PPR receives child support from the PAR. The PAR exercises “parenting time”, with the child, which used to be called “visitation”. The PPR has the responsibility for paying the first $250 of unreimbursed medical expenses per year per child who is in their custody. After that the parents allocate how they will pay for unreimbursed medical expenses.

If you need a lawyer to help you resolve custody issues concerning your children don’t hesitate to contact my office at 201-731-3086, or e-mail me, Brian Iton, using the e-mail contact form. I have been representing clients in custody cases (primarily in Bergen, Passaic, Hudson and Essex counties) for over 20 years. The initial consultation, whether by telephone or in person, is free.