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Know the Laws: New Jersey

UPDATED February 3, 2016

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WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action.To find help in your area, please go to the NJ Where to Find Help page.

Who can get custody

back to topWho can get custody?

At least one of the child's parents is entitled to custody, unless there is clear and compelling (convincing) evidence that both parents are "unfit," which could mean that the parents are grossly immoral or unfit, neglectful, or have behaved in a way that endangers the welfare of the child.* In the case that both parents are no longer living or are considered "unfit," the judge can award custody to another person or to an agency such as the Department of Human Resources, depending on what the judge believes to be in the best interest of the child.

* See NJSA §9:2-9

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back to topCan a parent who committed violence get visitation?

Yes, it is possible that a parent who committed violence will get visitation. An isolated act of violence does not automatically take away a parent's right to visitation. Often whether a parent who has committed violence will get visitation depends on how severe the violence was and whether it was directed toward you or your child. A judge will generally only deny a parent visitation if s/he feels it is in the best interest of your child. In some cases, a judge may give a parent the right to supervised visitation- where the parent and child can spend time together with another person present.*

* See NJSA §9:2-4(c)

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back to topI am the child's relative (aunt/grandparent/cousin/etc). Can I get custody of the child?

A court determines who should have custody based on what a judge thinks is in the best interest of the child. There is a very strong presumption that living with one or both parents is in the best interest of the child. Therefore, generally, a court will not award custody to another relative unless the court finds that both parents are "unfit" to take good care of the child.

However, a relative may be able to get temporary custody of the child if neither parent is able to take care of the child at that time and neither parent objects.

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back to topI am the child's relative (aunt/grandparent/cousin/etc). Can I get visitation of the child?

If you are a child's grandparent or sibling, you may ask the Superior Court to give you visitation of the child. A judge will give you visitation if you prove that there is more evidence showing that visitation is in the best interest of the child than there is evidence showing that it is not in the child's best interest. This means that a judge will look at many factors to decide what s/he thinks will be best for the child. Some of the things a judge will consider are:

  • Your relationship with the child;
  • Your relationship with both parents or with the child's guardian;
  • How long it has been since you have seen or talked to the child;
  • How visitation will affect the child's relationship with his/her parents or guardian
  • How parenting time is already shared, if the child's parents are separated or divorced
  • If you have committed physical, emotional or sexual abuse or neglect in the past;
  • Your motivation for asking for visitation (whether you are filing for visitation in “good faith”)
  • Any other factor relevant to the best interests of the child.

However, if you had been a full-time caretaker for the child in the past, then the court will assume that visitation is in the best interest of the child, unless there is other evidence to prove that it is not.*

* NJSA § 9:2-7.1

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back to topIf I have moved away from the house where the father and children currently live, will this hurt my chances of gaining custody?

It might be a good idea to consult a domestic violence advocate or attorney before leaving the home where your spouse and children currently live. In some cases, leaving the home could harm your chances of getting custody. This is especially true if you leave, but your children stay with your abuser.

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back to topDo I need a lawyer?

No, you do not need a lawyer to file for custody.  However, it may be best to get a lawyer, to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our NJ Finding a Lawyer.  Additionally, in some cases, the judge may decide that it is appropriate to order the other party to pay your attorney fees.*

If you are unable to get a lawyer, you can visit your local courthouse to file the paperwork that you will need to start a custody case.

You should know that court workers cannot tell you whether you should bring your case to court or what will happen if you do.  Even if you plan on representing yourself, it may be helpful for you to have a lawyer review your forms before you file them.

* NJ Court R. 5:3-5(c)

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