What are some of the pros and cons 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.
1 N.J. Stat. §9:17-43(a)(1)
2 N.J. Stat. §9:17-41(b)
Who can seek 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 N.J. Stat. § 9:2-4
2 N.J. Stat. § 9:2-9
3 N.J. Stat. §§ 9:2-9; 9:2-10
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 and
- 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 N.J. Stat. §9:2-4(c)
2 N.J. Stat. § 2A:34-12.5(c)
Can an abusive parent get custody or visitation?
Three of the factors that a judge will consider when deciding custody and visitation are:
- the history of domestic violence;
- the safety of the child; and
- the safety of either parent from physical abuse by the other parent.1
However, the law doesn’t say that the presence of any of these factors alone is enough to automatically deny custody or visitation rights.
1 N.J. Stat. § 9:2-4(c)
Can a parent who was convicted of sexual assault or a similar crime get custody or visitation?
If a parent was convicted of any of the following crimes, the judge will assume that the parent should not be granted custody or visitation of your child:
- sexual assault;
- aggravated criminal sexual contact;
- criminal sexual contact; or
- endangering the welfare of children.1
However, the convicted abuser could try to convince the judge that the best interest of the child is to allow custody and visitation. If the abuser shows clear and convincing evidence, the judge may allow custody or visitation rights.1
Note: Being denied custody and visitation will not automatically end the abuser’s parental rights or child support responsibilities.2 If there is any proceeding to establish or enforce child support, you will not have to be in the same room with the abuser if you were the victim of the crime for which the abuser was convicted. In addition, your child’s location should be kept confidential.3
1 N.J. Stat. § 9:2-4.1(1)(a), (1)(b)
2 N.J. Stat. § 9:2-4.1(1)(c)
3 N.J. Stat. § 9:2-4.1(1)(d)
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.
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.
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 N.J. Stat. § 9:2-7.1
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 N.J. Stat. § 9:2-4(f)