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:
(1) The parents’ ability to agree, communicate and cooperate in matters relating to the child;
(2) The parent’s willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
(3) The interaction and relationship of the child with its parents and siblings;
(4) The history of domestic violence, if any;
(5) The safety of the child and the safety of either parent from physical abuse by the other parent;
(6) The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
(7) The needs of the child;
(8) The stability of the home environment offered;
(9) The quality and continuity of the child’s education;
(10) The fitness of the parents – A parent shall not be deemed unfit unless the parents’ conduct has substantial adverse effect on the child.
(11) The geographical proximity of the parents’ homes;
(12) The extent and quality of the time spent with the child prior to or subsequent to the separation;
(13) The parents’ employment responsibilities;
(14) The age and number of the children;
Rule 1:40-5 Procedure On Custody Motion or Complaint
Procedurally, when one parent files a motion or complaint for custody in New Jersey Court Rule 1:40-5 requires that, if the motion papers raise a genuine and substantial issue regarding custody or parenting time, then the matter must be referred to mediation. Some judges follow this Rule, while others may have an initial hearing before deciding on whether to refer the case to mediation.
Rule 5:8-1 Custody Investigations
If the parties are referred to mediation and mediation fails to resolve the custody and parenting time issues, then the provisions of New Jersey Court Rule 5:8-1 and successive sections come into play. Rule 5:8-1 permits the court to order an investigation before any custody award is made to either parent. The investigation will include a review of:
(1) The character and fitness of the parents;
(2) The economic condition of the family;
(3) The parties’ homes – the review is limited to a factual description of the home where the child will reside or visit;
(4) Whether there are appropriate child safety precautions in the home;
(5) The number of household members and their relationship to the child;
(6) Criminal record checks for both parents;
Rule 5:8-5 Custody and Parenting Time Plan
In advance of a custody trial both parents have to submit a custody and parenting time plan to the court. The plan is a detailed summary of each parents proposal for how they want the court to resolve the custody and parenting time issues.
Rule 5:8-6 Court Interview with the Child
New Jersey Court Rule 5:8-6 also permits a court to interview the child who is the subject of the custody case.
Request for Change in Custody
Once the initial custody determination has been made if either parent wants to change the custody arrangement they have to show the court, first and foremost, that there has been a substantial change in circumstances which effect the best interests of the child. If they cannot show the court that there has been a substantial change in circumstances since the initial custody order was entered the court will not grant their request for a custody hearing. If they can demonstrate a substantial change in circumstances which effects the welfare of the child then a custody hearing will be set up.
If you are involved in a custody dispute, or if you have any questions about the procedure for determining custody in New Jersey, feel free to contact me via telephone or e-mail. My telephone number is 201-731-3086 (toll-free 844-431-3380). I have been representing clients in Northern New Jersey, including: Bergen, Passaic, Hudson, Essex, Union and Middlesex counties, for over 20 years. Your initial consultation is free.