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?
Possibly but this will depend on many factors. Please see our Changing a final custody order section under the general custody page for more information on what factors a judge will consider.