Legal Information: New Jersey

Custody

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Updated: 
April 1, 2022

What is custody?

Custody is the legal responsibility for the care and control of your minor child under 18. There are two types of custody: legal and physical.

Although it is not clearly defined in New Jersey statutes, legal custody usually refers to the right to make major decisions about your child. Some types of decisions generally 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

1 N.J. Stat. § 2A:34-54

What custody options are there?

New Jersey’s public policy is that children have frequent and continuing contact with both parents.1 Based on the best interest of the child, a judge can order any of the following:

  • joint legal custody, which is when both parents will make major decisions regarding the child’s health, education, and general welfare.2 This can be ordered even if only one parent has physical custody. 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;
  • joint physical custody, which is when the child lives with each parent for a period of time but it doesn’t necessarily mean that each parent has equal time;3
  • sole legal custody, which is when only one parent is able to make major decisions for the child;
  • sole physical custody, which is when the child primarily lives with one parent. The other parent will likely still have scheduled parenting time;4 or
  • any other custody arrangement the judge believes is in the best interest of the child.5

1 N.J. Stat. § 9:2-4
2 N.J. Stat. § 9:2-4(a)(2)
3 N.J. Stat. § 9:2-4(a)(1)
4 N.J. Stat. § 9:2-4(b)
5 N.J. Stat. § 9:2-4(c)

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.

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 N.J. Stat. § 2A: 34-12.3
2 N.J. Stat. § 2A:34-12.5(d) & (e)

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