What is custody?
Custody is the legal responsibility for the care and control of your child (under 18). The court may give custody of your child to one or both parents. There are 2 types of custody: legal and physical.
Legal custody is the right to make major decisions about your child. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery and what kind of religious training your child receives.
Physical custody refers to who your child lives with on a day-to-day basis. It is the physical care and supervision of your child.1
What options are there for legal custody?
If the court gives you sole legal custody, then you are the only parent who is able to make major decisions for your child.
If the court gives you joint legal custody of your child, it means that you share the right to make major decisions about your child with the other parent. This is true even though only one parent has physical custody (your child lives with only one parent). With joint legal custody, both parents have a say in major issues like where your child goes to school, whether s/he will have surgery and what kind of religious training s/he receives. Joint legal custody usually involves the parents talking with each other and making decisions jointly. Since cases of domestic violence involve control, fear and an imbalance of power, joint custody usually is not a good option.
What options are there for physical custody?
In New Jersey, if the court gives you sole physical custody of your child, then your child lives with you and not with the other parent. A parent with sole physical custody is sometimes called a child’s “primary caretaker”. Generally, the primary caretaker is the person who has responsibility for the everyday care of your child and the decisions that affect that care. If the other parent has visitation rights, then s/he will be considered to be your child’s “secondary caretaker”.
Joint physical custody is where your child lives with both you and the other parent, splitting her/his time between both homes. When there is joint physical custody, both parents share the rights of making day-to-day decisions about your child and the responsibilities of caring for your child. Some things that parents with joint physical custody will both be responsible for include: feeding your child, bathing your child, arranging medical care for your child, participating in your child’s education and putting your child to bed at night. Because parents with joint physical custody usually have joint legal custody as well, it also means that both parents share the right to make major decisions about your child.
Here are some examples of joint physical custody:
- Your child spends 3 days a week with you, and 4 days a week with the other parent
- Your child spends one week, month or year with you and then the next week, month or year with the other parent.
If you have physical custody and the other parent has visitation rights (parenting time), then this is not joint physical custody. This is true even if the other parent has a large amount of visitation time.1
1Pascale v. Pascale, 140 N.J. 583; 660 A.2d 485 (Supr Ct 1995).
What is mediation?
Mediation is a process by which parents attempt to reach an agreement relating to custody and visitation of their child. Mediation involves the help of a trained professional (a “mediator”) who guides the discussion process between the parents and tries to come to a compromise that both parents are happy with. The mediator cannot force you to agree to something that you don’t want.
Cases involving custody or parenting time will be referred to mediation. The case will not be referred to mediation if you have a temporary or final restraining order. However, in cases where there is domestic violence but there is no restraining order, you may still be referred to mediation but the issues of domestic violence will not be resolved in the mediation.1 Therefore, if you are the victim of domestic violence, make sure the judge knows this. It may affect his/her decision on whether to send you to mediation.
Mediation in domestic violence situations often does not work since one parent is usually afraid of the other and may not feel comfortable or safe disagreeing with the abusive parent. If you are referred to mediation, you can ask the court to remove your case from mediation – the judge will do so if there is “good cause” to remove it.1
There is a also a program involving mediation for issues of marital property and support in divorce cases. The court may refer you to mediation if you and the other parent have trouble agreeing on these issues, or you may ask the judge to refer you to mediation at any time. However, the case will not be referred to mediation if you have a temporary or final restraining order. 2
1 N.J. Court Rules, R. 1:40-5(a)(1)
2 N.J. Court Rules, R. 1:40-5(b); see also www.judiciary.state.nj.us/family/rosters/index.htm
What is the Parent's Education Program?
In New Jersey, when you file for divorce and there are issues of custody, visitation or support of your child, a judge may make you attend the “Parent’s Education Program.” This program addresses issues about how separation or divorce will affect you and your child. The program also encourages you to work together with the other parent to raise your child.1
If you have been a victim of domestic violence, it is very important that you let the judge know, because this program may not be appropriate for you. You will not have to complete the program if you have a temporary or permanent restraining order against the other parent. However, even if you don’t have a current restraining order, the court may excuse a party from attending the program if the court finds good cause to do so. 2
1 NJSA § 2A: 34-12.3
2 NJSA § 2A:34-12.5(d) & (e)