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 are some of the advantages and disadvantages of getting a custody order?
Some people decide not to get a custody order because they don’t want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent.
Getting a custody order can give you:
- The right to make decisions about your child
- The right to have your child live with you.
If you decide not to get a custody order, then you and the other parent likely have equal rights to making decisions and living arrangements. The exception to this is when paternity has not been legally established.
There are multiple ways that paternity (legal fatherhood) can be established in NJ. Here are some of the most common ones:
- The child is born during the marriage or within 300 days after the marriage ends;1
- The father signs a Certificate of Parentage before or after the birth of a child, and it is filed with the appropriate State agency;
- By a court order, which may be based on genetic (DNA) test that says there is a 95% or more chance that he is the father.2
However, since there are other ways that paternity may be established, you may want to contact a lawyer for more information. See our Finding a Lawyer page for lawyers in NJ.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to NJ Finding a Lawyer to seek out legal advice.
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).
Is there any difference between custody and visitation?
Yes. Custody can include the right to make decisions about your child (legal custody) and the right to have your child live with you (physical custody). A parent who does not have physical custody may be entitled to visitation. This means that even though your child lives with one parent, your child still gets to spend time with the other parent. In New Jersey, this is sometimes also called “parenting time.”
You may also share legal custody of your child (joint legal custody) with the parent who has visitation. In this case, your child lives with one parent and spends time with the other parent, but both parents have the right to make important decisions about your child.
To read more about “parenting time” and the laws governing it in New Jersey, you can view the New Jersey Judiciary guide online here: http://www.judiciary.state.nj.us/family/paretime.pdf
Who can get custody
Who can get custody?
A judge will decide who should have custody based on what s/he thinks is in the best interest of the child. There is a very strong presumption that parents should share the rights and responsibilities to a child.1 However, under the following circumstances, any person interested in the welfare of the child can file for custody:
- the parent(s) or other person having the actual care and custody of a minor child:
- are “grossly immoral or unfit” to manage the child’s care and education;
- will neglect to properly protect, maintain, and educate the child;
- have vicious, careless, or morally-unfit habits that will put the child in danger or make the child “likely to become a public charge,” which means that the child will rely on public benefits or enter the foster care system; or
- are dead or cannot be found; and
- there is no other person, legal guardian or agency exercising custody over such child;2
The petition for custody by a non-parent would be filed in the Superior Court, Chancery Division, Family Part in the county where the child lives.3
1 NJSA § 9:2-4
2 NJSA § 9:2-9
3 NJSA §§ 9:2-9; 9:2-10
Can 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.1
1 See NJSA §9:2-4(c)
I 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.1
1 NJSA § 9:2-7.1
If 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.
Do 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.1
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.
1 NJ Court R. 5:3-5(c)
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
The custody process
How will a judge make a decision about custody?
When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the best interest of your child. Generally, the court will try to make sure that both parents share the rights and responsibilities of parenting. This means that it tries to let both parents play an active role in taking care of your child and making decision s about your child’s life. The court will base its decision on many factors. Some of the things a judge will consider are:
- Both parents’ ability to agree, talk with one another and cooperate about issues relating to your child;
- Whether you and the other parent want custody;
- If either parent has refused to let the other parent see the child. However, a judge won’t take this into consideration if you prove that you denied access because you or your children were being abused;
- Your child’s relationship and interactions with both parents and any siblings. The court tries to make sure children will have an ongoing relationship with their brothers and sisters;
- The number of children involved and their ages;
- The history of domestic violence, if there is one;
- The safety of your child and of either parent from physical abuse by the other parent;
- Which parent your child would rather live with, if s/he is old enough to make an intelligent decision;
- What your child’s needs are;
- How stable both parents’ homes are;
- The quality and continuity of your child’s education-in other words, whether your child would have to change schools, and how good of an education s/he will receive;
- The general fitness of both parents
- Generally speaking, the court looks at the character, habits, and physical and mental condition of both parents to see whether it thinks you are “fit”;
- The distance between the parents’ homes
- Usually, the court will consider how far the distance is between both parents’ homes and whether either parent plans to move out of state;
- How much time and the quality of the time that both parents spent with the child, before or after you split up;
- Both parents’ employment responsibilities;1
- If either parent did not participate in the Parent’s Education Program, which may be ordered in cases involving divorce2 (discussed in the next question).
1 NJSA §9:2-4(c)
2 NJSA § 2A:34-12.5(c)
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)
In which state do I file for custody?
As is explained in a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can only file for custody in the “home state” of the child (but please also take a look at Are there exceptions to the “home state” rule?). The “home state” is the state where your child has most recently lived with a parent or a person acting as a parent for the past six consecutive months. If your child is less than six months old, then your child’s home state is the state where s/he has lived since birth. Leaving the state for a short period of time, such as going on vacation, does not change your child’s home state.
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least six months.1 However, there are exceptions - please see Are there exceptions to the “home state” rule?
1 See NJSA § 2A:34-65
Are there exceptions to the "home state" rule?
There are exceptions to the home state rule. You can file for temporary emergency custody in a state other than the home state if the child is present in the state and one of these things is true:
- the child has been abandoned; or
- it is necessary in an emergency to protect the child because the child (or a sibling or parent of the child) is subjected to, or threatened with, mistreatment or abuse.1
Also, in some cases, you may be able to file for custody in a state where the child and at least one parent have “significant connections.” Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction.2 This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.
For a list of legal resources, please see our NJ Finding a Lawyer page.
1 NJSA § 2A:34-68(a)
2 NJSA § 2A:34-65
What are the steps for filing for custody?
It depends on the particulars of your situation. To find out what the process will be like for you, please consult a lawyer in your area.
Generally, if the parents are married, one or both of the parents usually files for custody as part of a divorce action. If the parents are already divorced, the parent who does not have custody can ask for a change in custody in the county where the divorce was issued. If the parents were never married, either parent can file for custody in the county in which the child has been living for at least six months.
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
Who pays for mediation?
Generally, since mediation for child custody and visitation issues is ordered by the judge, you will not have to pay for it.
However, with mediation for issues of marital property or support, mediation costs may not be fully covered by the court. The mediator donates the first two hours (including preparation time) at no cost to the parties, but you may have to pay for any mediation beyond the first three hours.1
Can I change the state where the case is being heard?
After an order is in place
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