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.