Practice Areas

Custody and Visitation

1. Custody

In New Jersey, both parents have equal rights to the custody of children and the law encourages both parents to share in the rights and responsibilities of child rearing. (N.J.S.A. 9:2-4).

In family actions in which the Court finds that the custody of children is a genuine and substantial issue, the Court will refer the case of mediation. If mediation is unsuccessful, the Court may require an investigation to be made by the county probation office of the character and fitness of the parties. The probation office must file a written report with the Court within 45 days after they receive the Court's Order requiring the investigation. (R.5:8-1).

The Court may, at the request of one of both parties, appoint an expert (usually a psychologist) to conduct evaluations of the parties and the children. In making custody determinations, the Courts rely heavily on the expertise of psychologists and other mental health professionals.

In making a determination of custody, the Court's primary consideration in New Jersey is "the best interests of the children." If the Court is called upon to make a custody determination, it must consider, but not be limited to, the following factors:

  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 substantial abuse.
  3. The interaction and relationship of the child with 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 fitness of the parents.
  9. The geographical proximity of the parents' homes.
  10. The extent and quality of the time spent with the child prior to, or subsequent to, the separation.
  11. The parents' employment responsibilities.
  12. The age and the number of children. (N.J.S.A. 9:2-4).

There are two types of custody:

a. Sole Custody: An award of sole custody to one parent gives that parent residential custody of the children and the power to make all decisions concerning the health, education, and general welfare of the children.

b. Joint Custody: An award of joint custody is comprised of two elements - legal custody and physical custody.

  1. Joint Legal Custody: The legal authority and responsibility for making "major" decisions regarding the child's welfare is shared at all times by both parents.
  2. Joint Physical Custody: The parents share time with the children and they are each responsible for "minor" day-to-day decisions regarding the children while the children are in that parent's care.
  3. Joint Legal and Physical Custody: The legal authority and responsibility for making "major" decisions regarding the child's welfare are shared at all times by both parents. The parents share time with the children and they are each responsible for "minor" day-to-day decisions regarding the children while the children are in that parent's care AND the parents share time with the children and they are each responsible for "minor" day-to-day decisions regarding the children while the children are in that parent's care.

2. Parenting Time

Both parents have a constitutional right to enjoy a relationship with their children. In almost every case, absent the most extreme circumstances, the noncustodial parent will be afforded parenting time with the children, both during the divorce litigation and after.

Even in the most extreme case, the Court will seek to accommodate the natural rights of the parent to reasonable parenting time. However, parenting time may be terminated in extreme circumstances.

A parent's failure to pay child support Ordered by the Court is no defense to a denial of that parent's parenting time. Child Support and parenting time are not intertwined.

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The Law Offices of
Charles A. Matison, Esquire, P.C.
1640 Tilton Road
Northfield, New Jersey 08225
Phone: 1.609.407.1100
Fax: 1.609.407.1030
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