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Breaking Up is Hard to Do: Custody and Parenting Time

1.Legal Custody versus Physical Custody: There are two components to custody in New Jersey. Legal custody is the ability to make major decisions regarding the child’s heath, education and general welfa Except in extreme circumstances, most parties in New Jersey share legal custody, meaning they share the authority and responsibility to make major decisions regarding the welfare of the child. Beck v. Beck, 86 N.J. 480 (1981). A parent may be awarded sole legal custody when the other parent has been neglectful of the child or otherwise absent from the child’s life; or where the parents are unable to agree, communicate or cooperate in matters relating to the health, safety and welfare of their child, regardless of liberal time-sharing of the child. Nufrio v. Nufrio, 341 N.J. Super. 548 (App. Div. 2001). Even when the parties share joint legal custody, the parent of primary residence is still charged with making the routine day- to-day decisions on behalf of the child. Beck, 86 N.J. at 596. The Court in Beck listed several factors to be considered when deciding the practicability of a joint custodial arrangement. The factors include:

  1. Whether the children have established such relationships with both parents that they would benefit from joint custody;
  2. Whether both parents are fit, i.e., physically and psychologically capable of fulfilling the role of parent;
  3. Whether both parents exhibit a potential for cooperation in the best interests of the child;
  4. The financial status of the parents;
  5. The geographical proximity of their respective homes;
  6. Parental employment;
  7. The ages and number of children; and
  8. The preferences of the children, if they are of sufficient age and capacity to express meaningful preference. Id. at 499-500.

Practitioners suggest and Courts order joint legal custody in a majority of cases, assuming it is in the best interests of the child, as well as the most fair to the parties. Joint legal custody is, without doubt, what is “in fashion.” But is it really the best arrangement in all of these cases? What happens when the parties have reached an impasse on a particular issue? When joint legal custody is awarded, there is an underlying assumption that the parties will be able to reach decisions on matters of importance to the child. Unfortunately, case law following Beck proves that many parties cannot even agree on the most basic decisions, making the effectiveness of joint legal custody questionable.

In Brzozowski v. Brzozowski, 265 N.J. Super. 141 (Ch. Div. 1993), the parents of an eight-year-old child could not agree on whether their child should undergo surgery to correct a slight obstruction of her nose. The Court deemed that the custodial parent’s position would be the “tie breaker,” holding that the custodial parent has more authority to make medical decisions in the event of a disagreement between the parties, despite a joint legal custody arrangement. Id. at 147.

The Appellate Division upheld this notion in the context of a child’s religion in Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005). Like the Brzozowskis, the Feldmans shared joint legal custody of their three children. The father, who was Jewish, was the custodial parent. The mother was Catholic. Post-divorce, the children were raised in both faiths, but the mother sought to compel the father to enroll one of the children in religious classes that would take up the child’s entire Sunday each week. Not only would this impart much more Catholicism into the child’s life than before, but it would also interrupt the father’s every-other-Sunday parenting time. Id. The Court held that it was the primary caretaker’s right to raise and educate his children in his chosen religion and restrain others from educating the child in a different religion. Id. at 96.

While joint legal custody seems the most “fair” on its face, it is the unfortunate reality that such arrangements can wreak emotional havoc on a child, as the parties are forced to communicate with each other and reach decisions jointly (something that many parties were not even able to do during marriage, let alone after a divorce). It may actually be in the best interests of a child not to award joint legal custody in a high conflict divorce matter. Alternatively, it may be worth explaining to the non-custodial parent that, despite a joint legal custody arrangement, his or her decision-making abilities are not really equal to those of the custodial parent.

Physical custody is just that: actual custody of the child. Normally, one parent has primary physical custody of the child (has the child for a majority of the time), with the other parent having parenting time with the children (i.e. every other weekend). It is becoming more common, however, for parents to share physical custody, meaning they divide time with the child relatively equally.

2.Best Interests of the Child: Pursuant to J.S.A. 9:2-4, custody arrangements are fashioned in the “best interests of the child.” Barring extreme circumstances, our legislature believes that it is in the best interests of the child to maintain frequent contact with both parents. The level of contact that the child should maintain with each parent is dictated by the following factors under the statute:

  1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
  2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  3. The interaction and relationship of the child with its parents and siblings;
  4. The history of domestic violence, if any;
  5. The safety of the child and the safety of either parent from physical abuse by the other parent;
  6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  7. The needs of the child;
  8. The stability of the home environment offered;
  9. The quality and continuity of the child’s education;
  10. The fitness of the parents;
  11. The geographical proximity of the parents’ homes;
  12. The extent and quality of the time spent with the child prior to or subsequent to the separation;
  13. The parents’ employment responsibilities; and
  14. The age and number of the children.

3.High Conflict Custody Matters and the Use of Experts: What happens when parties simply cannot agree on custody or parenting time? Perhaps one party believes the other should not have any contact with the child at a Maybe the Husband believes he should have 50/50 custody, but the Wife believes the Husband should have only alternate weekends with the child. In these instances where the parties have dug in their heels and cannot reach a compromise, we may need to turn to expert testimony to render an opinion as to the child’s best interests. A Court may appoint an expert, the parties may retain a joint expert, or each party can retain his or her own expert. The expert can be a physician, psychiatrist, psychologist or other mental health professional. The expert cannot be a professional who is already providing therapy to a member of the family at issue. State Board of Psychological Examiners Regulation 13:42-12.3.

  1. What does the expert do? In rendering an opinion about what custody arrangement is in the child’s best interests, the expert can interview the parties, children and collateral contacts (grandparents, family friends, teachers); investigate the parties’ homes; review medical records; conduct observations of the parties interacting with the children; and perform clinical testing on the parties.
  2. What is the scope of the expert’s opinion? The parties or the Court define what the scope of the expert’s opinion will b If the parties cannot agree on anything at all, the expert may be charged with defining what custody and parenting time arrangement is in the child’s best interests. The scope can also be more focused, like “how much overnight parenting time should the non-custodial parent have?” or “is one party alienating the children from the other party?”
  3. Expert report: An expert will usually render a report prior to trial. Hopefully, the parties’ review of the report will help to settle the matter. If it does not, then the expert will testify to the report at trial. The report itself is hearsay, though courts usually relax the New Jersey Rules of Evidence and admit reports into evidence because they tend to be very useful and the protection of a child’s best interests is so important.

4.Removal of a Child out of New Jersey: During or after the parties’ divorce proceeding, the custodial parent may desire to relocate outside of New Common reasons include, but are not limited to, job opportunities, remarriage, and a lower cost of living. Without the express consent of the non-custodial parent, the custodial parent must get permission from the Court before he or she relocates out of state with the child. N.J.S.A. 9:2-2. If the parties share true 50/50 custody with the child, then the ability of the parent to relocate turns on what is in the best interest of the child. When the parties share less than 50/50 custody, then the ability of the parent to relocate is governed by the factors set forth in Baures v. Lewis, 167 N.J. 91 (2001).

Under Baures, the party seeking to move must first prove (1) a good faith reason for the move, and (2) that the move will not be inimical to the child’s interests. If the custodial parent cannot meet this initial burden, then the removal application will be denied.

If the custodial parent does meet the initial burden, then the burden shifts to the non-custodial parent to produce evidence that the move is either not in the child’s best interests or is inimical to the child’s interests. In determining all of the above, the Court considers the following factors:

  1. The reason for the move;
  2. The reasons given for the opposition;
  3. The past history of dealings between the parties;
  4. Whether the child will receive educational, health and leisure opportunities at least equal to the current location of the child;
  5. Any special needs or talents of the child;
  6. Whether a visitation or communication schedule can be developed with the non-custodial parent;
  7. The likelihood of the custodial parent fostering that relationship;
  8. Effect of the move on extended family relationships;
  9. If the child is of an age to make a reasoned decision;
  10. Whether the child is entering his senior year in high school in which case removal should not be granted against the child’s wishes;
  11. Whether the non-custodial parent has the ability to relocate; and
  12. Any other factor bearing on the children’s interests.

Pursuant to Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), a parent seeking to move within the state of New Jersey with the child does not need to seek permission from the Court before moving. However, the relocation may constitute a change of circumstances warranting modification of the custodial and parenting time arrangement. Schulze, supra, 361 N.J. Super. at 426. The Court will consider the factors set forth in Baures v. Lewis, 167 N.J. 91, 117 (2001) in determining whether a modification of the custodial and parenting time arrangement is warranted. Id.

5.Enforcing a Custody or Parenting Time Order or Judgment: Like the enforcement of alimony or child support, if a party violates a custody or parenting time order, the non-violating party can file an application to enforce the order and hold the violating party “in violation of litigant’s rights.” For example, one party may refuse to bring the children to the “drop-off” site so the other party can exercise his or her parenting tim Conversely, one party may not show up for his or her parenting time at all, causing the custodial parent to incur costs to find child care for the children. The Court Rules provide for specific remedies for the violation of a custody or parenting time order under R. 5:3-7(a), which include:

  1. Compensatory time with the children;
  2. Economic sanctions, including but not limited to, the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent;
  3. Modification of transportation arrangements;
  4. Pick-up and return of the children in a public place;
  5. Counseling for the children or parents or any of them at the expense of the parent in violation of the order;
  6. Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
  7. Participation by the parent in violation of the order in an approved community service program;
  8. Incarceration, with or without work release;
  9. Issuance of a warrant to be executed upon the further violation of the judgment or order; and
  10. Any other appropriate equitable remedy.