Custody & Support
Some of the most heated battles in divorce cases involve child custody and support. It can be difficult to understand how New Jersey courts make decisions regarding who a child lives with and how much financial support a young person needs. State child support laws have been enacted with the understanding that all children have the right to financial support from their parents until they are emancipated. Both parents are responsible for this support at the level appropriate to their income. However, both child support and child custody orders can be modified if the parents' circumstances change, or the child's needs change. At Goldstein Law Group, our divorce attorneys have assisted many residents of Monmouth County and other New Jersey regions in untangling these challenging issues.Determining Child Custody Arrangements
A custody analysis turns on the best interests of the children. Both parents are initially considered equal with regard to custody rights. This means the mother is not automatically favored. Many divorce litigants have been misinformed that the mother has greater rights to be the children’s primary caretaker. There is an antiquated theory that used to permeate the custody cases from decades ago, known as the “tender years doctrine.” This doctrine presupposed that the best interest of children was for the custody of children of younger ages (“tender years”) to be with their mother. That may have been the case many, many years ago. However, time (and the law!) have changed significantly. Under Title 9 of the New Jersey Statutes, both parents are presumed, at the start, to parent their children equally (this is what is known as a “rebuttable presumption”). However, factors specific to each case may tilt the scales and affect this balance. At Goldstein Law Group, our divorce and custody attorneys have assisted many residents of Monmouth County and other New Jersey regions in complex and contentious custody cases between parents.
When the concept of “custody” of children arises in a family law case, whether between two divorcing spouses or two unmarried parents, there are essentially two components associated with the custody of minor children. The first such concept pertains to the “legal custody” of the minor children. When a parent has legal custody, it means he or she makes decisions in the child's life regarding medical care, education, religion, and other critical matters.
The second component to “custody” involves the physical, or residential aspects of when and where the child will reside. When a parent has “physical custody”, it means that the child may live with one parent primarily (the majority of the time) but spend time frequently with the other parent. If a child spends more time residing with one parent than the other, that parent is referred to as the Parent of Primary Residence (the “PPR”); the other parent, with whom the child resides the balance of the time, is known as the Parent of Alternate Residence (the “PAR”). These labels replaced the older, non-politically correct terms of “custodial parent” and “non-custodial parent.” It is correct to say that BOTH parents get to “parent” their children. The time spent with the parent of alternate residence is no longer referred to as “visitation” either. It is simply “parenting time”. The parents now “co-parent” their children.
The most common custody arrangements are either joint custody or sole custody. When parents have joint custody, they may share both legal and physical custody of the child, or one of them may have primary physical custody but share legal custody, or vice versa. When one parent has sole (legal) custody, that parent has is vested with the sole decision-making ability, sole physical custody, or both.How does a Court Decide an Award of Custody?
An award of custody between two parents who cannot themselves come to an amicable agreement will end up having the court decide the custody provisions, both the legal and the residential custody components. In doing so, the court will generally seek to have a “best interest evaluation” performed by a qualified forensic psychologist or other licensed individual. The standard to be applied by the court is this illusive concept known as “the best interest of the child”. If the parents themselves cannot agree on what is in their own child’s best interest, the Court, with the guidance of the best interest evaluator, who will conduct an exhaustive (and costly!) evaluation, the object of which is to render a report for the court to consider (it is NOT binding on the court, but rather, is intended to be a guide to assist the court in ascertaining relevant psychological and practical information which the court must consider), in conjunction with the testimony and evidence at trial to be elicited from the litigants, fact witnesses, the expert(s), and in some cases, the children themselves, to express their views, if they are of sufficient age and capacity (who are typically interviewed by the judge, in-camera).
When deciding what is in the child's “best interest,” a family law court will consider how well the parents communicate as to the child, the parents' willingness to accept custody, any history of unwillingness to allow the other parent time with the child, the interaction of the child with each parent and other siblings, any history of domestic violence or abuse, the children's preferences if they are old enough and emotionally capable of making a sound decision, the children's needs, the stability of the home environment of each parent, the geographical proximity of the parents' homes to school, how much time each parent spends with the children, the parents' employment responsibilities, and the children's ages. Parents are not deemed unfit for custody unless their behavior has a proven substantial adverse effect.How Is Child Support Determined?
Once the issue of custody has been resolved and there is a custody and parenting schedule in place, it is now necessary to determine the amount of child support that may be payable from one parent to the other. The "income shares" method of deciding child support is used in New Jersey. This means that the parents' combined incomes will determine how much child support is necessary. A court can consider the children's needs, the standard of living of each parent, the parent's income and assets, the parents' respective earning ability and work experience, and the custodial responsibility that the court has given the parents. It also may examine the amount of time it may take for a parent to be able to have suitable employment, the child's specific needs, the health of the children and parents, the child's income or assets, the parents' responsibilities to others as ordered by the court, and in certain limited situations, the parents' debts and liabilities. The applicable custody laws, the considerations that affect custody and the resulting child support calculations, and the assumptions underlying the New Jersey Child Support Guidelines, are complex.Consult a Middlesex County Attorney Skilled in Child Custody Matters
Child custody depends on the children's best interests. Parents can have dramatically different ideas about what those are and about each other's financial situation or capabilities. The child custody lawyers at Goldstein Law Group have consulted with many Middlesex County residents about these issues and other aspects of a divorce. Contact us at 732-967-6777 or via our online form. We have assisted individuals from communities such as Red Bank, Manalapan, and East Brunswick.