If the judge denies a request for custody, does s/he have to explain why it was denied?
Yes. Anytime the judge makes a custody arrangement that both parents do not agree on, the court must specifically explain why “on the record.” Usually, the judge explains the reasons orally, in the courtroom. The denial of custody should be documented in an order but the reasons for the decision are rarely explained there. If you would like the judge’s explanation and you cannot be in court to hear it, you may order a transcript of the oral decision from the court for a cost.1
1 NJSA § 9:2-4(f)
Can I get financial support for my children and myself?
Yes. But the court makes separate decisions when awarding support for you and your children, so it is possible that you may only be able to get support for your children, and not for yourself.
Support for your child: Generally, the court will determine how much money the other parent will pay to support your child. The court almost always uses set guidelines in a child support obligation worksheet to determine how much support you will receive.
If you would like to see all of the factors that go into determining support, you can visit the NJ Courts Website. The guidelines the court uses involve a very complex formula, but basically the court looks at both parents’ incomes, your child’s needs and how much time your child spends with each parent. To get a rough idea of how much support you may receive, the Department of Human Services has a “child support calculator,” which estimates the amount of support you may get.
Support for you: This is also referred to as alimony or maintenance. If you are getting separated or divorced, a court can award you temporary or permanent alimony. In deciding whether to award you alimony, a judge will look at any factors that s/he feels are important. A few of the things a judge will look at are:
- Your need for payment/ the other parent’s ability to pay;
- How long you were married;
- The age, physical and emotional health of you and the other parent;
- The standard of living you had in your marriage and how likely it is that you will be able to maintain a similar standard of living;
- How much both parents can earn for a living, and how much education you both have;
- The length of time you have been out of the job market. The time and expense needed for you to get an education or training to help you get a job;
- Each party’s financial and non-financial contributions to the marriage (including stopping your career to raise the children);
- The parents’ responsibilities for the children; and
- Income or property you are getting as a result of the divorce.1
1 see NJSA §2A:34-23(b)
If a custody order is already in place, how can I get it changed?
To change a custody or visitation order that is already in place, you need to file for a modification of the custody order in court. Generally, for the court to grant you a change in custody or visitation, you need to show that there has been a significant change in circumstances since your last hearing. Since this can be complicated, we recommend that you talk to a lawyer about your situation.
Can a parent who does not have custody have access to the child's records?
Both parents will have access to the child’s records, even if the child lives with only one parent. These records include information about the child’s medical, dental, educational care, insurance and child care. These records won’t include where either parent lives. If you don’t want the other parent to see these records, you may ask the court for a hearing to limit the other parent’s access. A judge will limit access if s/he decides that it would be in the best interest of your child, or if the other parent is using access to the records to harm you.1
1 NJSA §9:2-4.2
If there is a custody order in place, can I take my kids out of the state?
It depends. Generally, whether you can take your child out of the state for a short period of time depends on what your custody order says. The custody order may allow you to take your child out of the state, prohibit you from taking the kids out of the state, or it may not address this issue at all. If it does not address the issue, you may need either the consent of the other parent or permission from the judge. The judge may require that you post a bond or other security conditioned upon the return of the child to the state.1
If you would like to move to another state with your child, then you may have to ask the court’s permission (called a removal application). If you and the other parent share custody, and you want to move to another state with your child, then the court views this as if you had asked for a modification of custody. This means that the judge will look at this in the same way as if you had asked the court to take custody away from the other parent and give it to you. To get custody modified, you must convince the judge that there is “a substantial change in circumstances from the time the current custody arrangement was established,” and that a transfer of custody would be in the best interest of your child.1
If you have physical custody of your child and the other parent has visitation, then you must prove to the court that you have a “good faith” motive in moving (that you are not moving merely to make visitation difficult for the other parent) AND that the move will not go against what is in the best interest of your child. When a court considers this, it will look at how changes in visitation may affect the best interest of your child. You may also have to give a plan for proposed visitation.
Some factors that the court may look at to decide if you will be given permission to relocate are:
- reasons for the move;
- reasons for the other parent’s opposition to your move;
- how the past history of the parties affects the reasons for and against the move;
- whether the child will receive educational, health, and leisure opportunities that are as good as the ones s/he has now;
- any special needs or talents of the child that require specialized help and whether that help is available in the new location;
- whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
- the likelihood that the custodial parent will continue to encourage the relationship of the child with the noncustodial parent;
- the effect of the move on extended family relationships;
- the child’s preference if s/he is mature enough to express it;
- whether the child is entering senior year in high school;
- whether the noncustodial parent has the ability to relocate; and
- any other factor bearing on the child’s interest.
Not all of these factors will be relevant or given equal weight by the court.2
1 NJSA §9:2-2
2Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (Supr Ct 2001)
If my spouse/ex takes the kids out of state without my permission, can I charge him with kidnapping?
It depends. Generally, you cannot take your kids out of the state, even for a short period of time, without the other parent’s permission, unless the court order specifically says you can. If your court order does not address this issue, then the other parent is likely not allowed to leave the state with your child, unless you give him permission. If the other parent takes the kids out of state without your permission or the permission of a judge, you may be able to file for contempt of the custody order.1
If you have a custody/visitation order in place and the other parent tries to hide your child in violation of the custody or visitation order, he might be charged with what is called “interference with custody.” This is true whether the other parent leaves the state with your child or not.2
1 NJSA § 9:2-2
2NJSA § 2C:13-4