Articles Posted in Custody and Visitation in New Jersey

The New Jersey courts use different standards to determine initial custody awards versus requests for changes to an established custody order.

Initial Custody Awards

When two parents have not been to court previously to decide who is the parent of primary residence (PPR) and who is the parent of alternate residence (PAR) the court has to make an initial determination of custody. New Jersey Statute section 9:2-4 empowers the court to make that initial decision. In order to make a custody decision the court considers the following factors:

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The answer to this question is “NO” if the custodial parent shares joint legal custody with the non-custodial parent. The case that deals with what the custodial parent has to show the court to be able to move from New Jersey with the children is Baures v. Lewis, 167 N.J. 91 (2001).

Relevant Facts of the Baures Case

In the Baures case the mother, a Wisconsin native, wanted to relocate from New Jersey back to Wisconsin with the parties developmentally disabled child. The father, who was an Iowa native, wanted the child to remain in New Jersey. After a hearing the trial judge denied the mother’s relocation application.

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The question above was answered “YES” in the case of Schulze  v. Morris, 361 N.J. Super 419 (2003).

Relevant Case Facts

The Schulze case involved a dispute between divorced New Jersey parents as to where their child would reside post-divorce. The parties resided in Middlesex County during their marriage, and they had one child. When they divorced in 1998 their settlement agreement provided that they would share joint legal custody of their son, and the child’s mother would be the parent of primary residence. At the time of the divorce the parties were aware that the child’s father would be leaving New Jersey to further his education. They agreed on a parenting plan that covered his parenting time prior to his departure, and during his time out of state. They also agreed that upon his return to New Jersey the father’s parenting time with the child would be renegotiated. Their agreement further provided that if the parties could not amicably resolve the parenting time issue upon the fathers return that either party could apply to the Court to determine the parenting time schedule.

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When a parent consistently violates an established parenting time order there are numerous remedies that a New Jersey court can order to sanction the violator.

New Jersey Court Rule 5:3-7(a) Additional Remedies on Violation of Orders Relating To Parenting Time, Alimony, Support or Domestic Violence Restraining Orders

Rule 5:3-7(a) lists numerous sanctions which the court can impose on a parent who violates a custody or parenting time order. The possible sanctions include: compensatory time with the children; economic sanctions for costs incurred by the non-violator parent due to the other parent’s custody or parenting time violation; modification of the existing transportation (pick up/drop off arrangements) – including changing the exchange location to a public place; ordering counseling for either or both of the parties and/or the children at the expense of the violator; ordering a temporary or permanent modification of the parenting time and custodial arrangement if under the circumstances this relief is in the best interests of the children; ordering the violator to participate in a community service program; incarceration of the violator with or without work-release; issuance of a warrant to be executed if the violator persists in failing to comply with court orders; any other appropriate equitable remedy.

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Custodial parent’s in New Jersey are often surprised to find out that even if they are deemed the custodial parent by a family court they are not automatically entitled to claim their children as tax exemptions each year. The New Jersey courts treat the issue of custody and who can claim the children as tax exemptions as separate but related issues. The leading case which discusses allocation of child tax exemptions in New Jersey is Gwodz v. Gwodz, 234 N.J. Super. 56 (1989).

In the Gwodz  case the husband and wife had a property settlement agreement which resolved their divorce without a trial. The parties agreed that wife would have custody of their two children. However, for whatever reason, their written settlement agreement made no mention of who would be able to claim the children as tax exemptions each year.

A few years after their divorce the husband filed a motion seeking, among other relief, that he be permitted to claim both children as tax exemptions. The court issued an order which allowed each party to claim one child as a tax exemption each year. The wife appealed the judge’s decision to the appellate division. Continue reading →

New Jersey Statutes (NJS) 2A: 12-7 States: 

Legislative Findings and Declarations
  a. In the area of child visitation a court often orders 
supervised visitation where there has been a history of child abuse, medical
disabilities, psychiatric problems or other situations where the 
safety and welfare of the child may be jeopardized.

Contrary to many parents belief supervised visitation is not awarded because of one parent’s subjective feelings about the other parent’s parenting skills. Supervised visitation is generally limited to situations, as described above, where a judge is persuaded (with evidence) that the non-custodial parent may endanger the child if they are left alone with them – hence the need for supervised visitation. Examples of situations where supervised visitation is appropriate are:

  • The non-custodial parent has physically or emotionally harmed the child in the past. Documentation of the harm is the best evidence.

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Locations

Every custody and parenting time (visitation) agreement should address the issue of pick up and drop off of the children. In the low or no-conflict situation the parties can agree to pick up and drop off at the other person’s residence or any mutually convenient location. However, in a higher conflict situation child pick up and drop off has to be structured to deal with the possibility of a negative parental interaction.

In a higher conflict parental situation the custody exchange can be “curbside”, at a third-party’s residence, at the child’s school, or in a worst case scenario, at the police station. In all of these situations the idea is to reduce or remove the ability for the parties to interact face-to-face.

Curbside pick up and drop off is the term used for an exchange in which one parent arrives at the other parent’s residence, either by car or on foot, and they do not go up to the other parent’s door. They wait at the curb. They do not enter onto the other parent’s property. The child comes out of the residence and walks to meet the parent doing the pick up at the curb. In this situation there is no parental interaction. (Of course, with an infant who has not begun walking there will have to be more parental interaction).

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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. Continue reading →