Child Custody

At the law firm of Villani and DeLuca we effectively represent mothers, fathers, grandparents and other interested parties in child custody controversies without putting children in the middle of the dispute. We are committed to providing the most professional level of service to each of our valued clients in a caring and compassionate manner. In addition to the custody and parenting time issues discussed above we also handle related issues including: Annulment and legal separation Child custody, legal custody, joint custody, and parenting time modifications Child support and child support modifications Custody time evaluations Grandparent custody, visitation and grandparent’s rights cases Interstate jurisdictional issues involving the Uniform Child Custody Jurisdiction Act (UCCJA). Marital settlement agreements Mediation and settlement agreements Parenting time, parenting plans, and co-parenting issues Premarital and prenuptial agreements Separation agreements Collaborative Divorces

Collaborative Divorce  Mediation  Family Law  Divorce  Child Custody  Child Support

Common Questions and Answers:

What is custody?

Custody is the legal responsibility for the care and control of your child (under 18). The court may give custody of your child to one or both parents. There are 2 types of custody: legal and physical. Typically the parties to a divorce will eventually share legal custody with the spouse being designated as the parent of the primary residence. (i.e. where the child resides the majority of the time). Legal custody is the right to make major decisions about your child. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery and what kind of religious training your child receives. Physical custody refers to who your child lives with on a day-to-day basis.

What options are there for legal custody?

If the Court grants you sole legal custody, then you are the only parent who is able to make major decisions for your child. The courts are hesitant to grant sole custody and usually only do so in extreme circumstances (i.e. one parent is incarcerated or has a drug addiction etc.) If the Court grants you joint legal custody of your child, it means that you share the right to make major decisions about your child with the other parent. This is true even though only one parent has physical custody (your child lives with only one parent). With joint legal custody, both parents have a say in major issues like where your child goes to school, whether he/she will have surgery and what kind of religious training he/she receives.

What options are there for legal custody?

If the Court gives you sole legal custody, then you are the only parent who is able to make major decisions for your child. If the Court gives you joint legal custody of your child, it means that you share the right to make major decisions about your child with the other parent. This is true even though only one parent has physical custody (your child lives with only one parent). With joint legal custody, both parents have a say in major issues like where your child goes to school, whether he/she will have surgery and what kind of religious training he/she receives.

What options are there for physical custody?

In New Jersey, if the Court grants you sole physical custody of your child, then your child lives with you and not with the other parent. Joint physical custody is where your child lives with both you and the other parent, splitting her/his time between both homes. When there is joint physical custody arrangement, both parents share the rights of making day-to-day decisions about your child and the responsibilities of caring for your child. In order for joint physical custody to be a viable option the parties must have the ability to communicate well with one another (have a good relationship with one another) as well as reside in close proximity to one another. In a joint physical custodial arrangement both parents will be responsible for the feeding of the child, bathing the child, arranging medical care for the child, participating in your child's education and putting the child to bed at night. Because parents with joint physical custody usually have joint legal custody as well, it also means that both parents share the right to make major decisions about your child. Here are some examples of joint physical custody: Your child spends 3 days a week with you, and 4 days a week with the other parent. Your child spends one week, month or year with you and then the next week, month or year with the other parent. If you have physical custody and the other parent has visitation rights (parenting time), then this is not joint physical custody. This is true even if the other parent has a large amount of visitation time.

Is there any difference between custody and parenting time?

Custody can include the right to make decisions about your child (legal custody) and the right to have your child live with you (physical custody). A parent who does not have physical custody may be entitled to significant parenting time. This means that even though the child lives primarily with one parent, the child still gets to spend time with the other parent. In New Jersey, this is sometimes also called "parenting time." You may also share legal custody of your child with the parent who has parenting time. In this case, your child lives with one parent and spends time with the other parent, but both parents have the right to make important decisions about your child. To read more about "parenting time" and the laws governing it in New Jersey, you can view the New Jersey Judiciary guide online here: http://www.judiciary.state.nj.us/family/paretime.pdf

What are some of the advantages and disadvantages of obtaining a custody order?

Some people decide not to get a custody order because they do not 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 provide you with: The legal right to make decisions about your child. The legal right to have your child live with you. If you decide not to obtain a custody order, then legally, you and the other parent both have equal rights to make decisions about your child and live with your child. The only way to legally change this arrangement is to file for custody.

Who can get custody?

At least one of the child's parents is entitled to custody, unless there is clear and compelling evidence that both parents are "unfit." In the rare case that the parents are no longer living or are considered "unfit", the judge can award custody to another person or to an agency such as the Department of Human Resources, depending on what the judge believes to be in the best interest of the child.

Can a parent who committed domestic violence obtain parenting time?

Yes, it is possible that a parent who committed violence will be awarded parenting time. An isolated act of domestic violence does not automatically take away a parent's right to parenting time. Often whether a parent who has committed domestic violence will obtain parenting time depends on how severe the domestic violence was and whether it was directed toward you or your child. A judge will generally only deny a parent parenting time if he/she feels it is in the best interest of the child. In some cases, a judge may give a parent the right to supervised parenting time-where the parent and child can spend time together with another person present.

I am the child's relative (aunt/grandparent/cousin/etc). Can I get custody of the child?

Probably not. A court determines who should have custody based on what a judge thinks is in the best interest of the child. There is a very strong presumption that living with one or both parents is in the best interest of the child. Therefore, generally, a court will not award custody to another relative unless the court finds that both parents are "unfit" to take good care of the child. However, a relative may be able to get temporary custody of the child if neither parent is able to take care of the child at that time and neither parent objects.

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 with the child. A judge will grant 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 he/she thinks will be best for the child. Some of the things a judge will consider are: Your relationship with the child. Your relationship between 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. Whether the judge thinks you have the best interest of the child at heart. If you have neglected or abused 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.

How will a judge make a decision about custody?

When deciding who will be awarded custody, a judge will try to make an arrangement that he/she 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 the court is inclined to let both parents play an active role in taking care of the child and making decisions about the 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 the 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 will not take this into consideration if you prove that you denied access because you or your child were being abused. Your child's relationship with both parents and any siblings. The court tries to make sure children will have an ongoing relationship with their brothers and sisters. How many other children you have and how old they are. 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. If either parent did not participate in the Parent's Education Program (See What is the Parent's Education Program?).

What is the Parent's Education Program?

In New Jersey, when you file for custody, visitation or support of your child, a the court will probably require you to attend the "Parent's Education Program." This program addresses issues about how separation or divorce will affect you and your child. If you and the other parent file for custody, visitation or support, then you will both be compelled to complete the program separately. The program also encourages you to work together with the other parent to raise your child. If you have been a victim of domestic violence, it is very important that you let the judge know, because this program could force you to cooperate with your abuser. If there has been abuse, then the program may not encourage you and the other parent to work together. You will not have to complete the program if you have a temporary or permanent restraining order against the other parent.

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 obtaining custody. This is especially true if you leave, but your children stay with your abuser.

Do I need a lawyer?

While it is not mandatory, it may be best to get a lawyer, to make sure that your rights are protected. If you are unable to get a lawyer, you may be able to file for custody on your own. You can visit your local courthouse, which may have copies of some of the paperwork that you will need. 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.

In which state do I file for custody?

It depends. Only one state's court will have jurisdiction, or the power to hear your case. Custody jurisdiction is state law. However, most states have adopted a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). New Jersey has recently adopted the UCCJEA. Under the UCCJEA, you can only file for custody in the "home state" of the child. The "home state" is typically the state where your child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than 6 months old, then your child's home state is the state where s/he has lived since birth. Leaving the state for a short period of time, such as going on vacation, does not change your child's home state. If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least 6 months. Please be advised that there are exceptions to this rule.

What are the steps for filing for custody?

It depends on the particulars of your situation. To find out what the process will be like for you, please consult a lawyer in your area. Generally, if the parents are married, one or both of the parents usually files for custody as part of a divorce action. If the parents are already divorced, the parent who does not have custody can ask for a change in custody in the county where the divorce was issued. If the parents were never married, either parent can file for custody in the county in which the child has been living for at least six months.

What is mediation?

Mediation is a private, informal way to work out your dispute. It utilizes a neutral third-party, called a mediator, to help you and the other parent agree on matters relating to custody and visitation of your child. A judge may refer you to mediation if s/he thinks it will be helpful, but the mediator cannot force you to agree to something that you do not want. You may also ask the judge to refer you to mediation at any time. If you are the victim of domestic violence, make sure the judge knows this. It may affect his/her decision on whether to send you to mediation. Also, if you have a temporary or final restraining order against the other parent, the court will not make you go through mediation. The court may refer you to mediation if you and the other parent have trouble agreeing on these issues, or you may ask the judge to refer you to mediation at any time.

Who pays for mediation?

Generally, since mediation for child custody and visitation issues is ordered by the judge, you will not have to pay for it.

If a court denies a request for custody, do they have to explain why?

Yes. Anytime the court makes a custody determination 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.

Can I get financial support for my children and myself?

Yes. But the court makes separate decisions when awarding support for you and your children, so it is possible that you may only be able to get support for your children, and not for yourself. Support for your child: Generally, the court will determine how much money the other parent will pay to support your child. The court almost always utilizes set guidelines that are contained in a child support obligation worksheet to determine how much support you will receive. If you would like to see all of the factors that go into determining support, you can visit the NJ Courts Website. The guidelines the court uses involve a very complex formula, but basically the court looks at both parents' incomes, your child's needs and how much time your child spends with each parent. The more time your child spends with you, the more support you will usually receive. To get a rough idea of how much support you may receive, you can visit this website: www.alllaw.com/calculators/childsupport/new_jersey/ . You should know that this website only estimates the amount of support you may receive. The actual amount of support you receive depends on how much the judge actually decides to give you. You can also read more information about child support at http://www.njchildsupport.org. Support for you: This is also referred to as alimony. If you are getting separated or divorced, a court can award you temporary or permanent alimony. In deciding whether to award you alimony, a judge will look at statutorily mandated factors. A few of the factors a judge is required to consider are: Your need for payment/ the other parties' ability to pay The duration of your marriage The age, physical and emotional health of you and the other party The standard of living you enjoyed in your marriage and how likely it is that you will be able to maintain a similar standard of living How much both parties can earn for a living, and how much education you both have A judge cannot give you alimony if you were not married to the other parent or if your divorce has already been finalized.

If a custody order is already in place, how can I get it changed?

To change a custody or visitation order that is already in place, you need to petition the court. Generally, for the court to grant you a change in custody or visitation, you need to show that there has been a significant change in circumstances since your last hearing. To file a motion for (ask for) a change in custody or visitation, you must fill out certain forms and return them to the court. The court clerk may be able to answer some questions you have about the paper work. However, the packet and court workers cannot tell you whether you should bring your case to court or what will happen if you do.

Can a parent who does not have custody have access to the child's records?

Both parents will have access to the child's records, even if the child lives with only one parent. These records include information about the child's medical, dental and educational care. If you do not want the other parent to see these records, you may ask the court for a hearing to limit the other parent's access. A judge will limit access if s/he decides that it would be in the best interest of your child, or if the other parent is using access to the records to harm you.

If there is a custody order in place, can I take my kids out of the state?

It depends. Generally, you are not allowed to take your child out of the state, even temporarily, unless either: the court order specifically allows you to, or the other parent gives you permission. If the court order does not say anything about whether you can take your kids out of the state temporarily, then you can ask the judge for permission to take your child out of state. The judge may require that you post a bond or other security conditioned upon the return of the child to the state. If you would like to move to another state with your child, then you have to ask the court's permission. If you and the other parent share custody, and you want to move to another state with your child, then the court views this as if you had asked for a modification of custody. This means that the judge will look at this in the same way as if you had asked the court to take custody away from the other parent and give it to you. Just as in an initial custody determination, the court's biggest concern is what it feels is in the best interest of your child. To get custody modified, you must convince the judge that there is "a substantial change in circumstances from the time the current custody arrangement was established," and that a transfer of custody would be in the best interest of your child. If you have physical custody of your child and the other parent has visitation, then you must prove to the court that: You have a "good faith interest" in moving, meaning that you are not moving merely to make visitation difficult for the other parent, AND That it will not go against what is in the best interest of your child. (When a court considers this, it will look at how changes in visitation may affect the best interest of your child). You must also provide the court with a fair and reasonable alternate proposal for visitation to show that your child would still have opportunities to see the other parent if you were to move.

If my spouse/ex takes the kids out of state without my permission, can I charge him with kidnapping?

It depends. Generally, you cannot take your kids out of the state, even for a short period of time, without the other parent's permission, unless the court order specifically says you can. If your court order does not address this issue, then the other parent is not allowed to leave the state with your child, unless you give him/her permission. If the other parent takes the kids out of state without your permission or the permission of a judge, you may be able to file for contempt of the custody order. If you have a custody/visitation order in place and the other parent tries to hide your child in violation of the custody or visitation order, you can charge him/her with what is called "Interference with Custody." This is true whether the other parent leaves the state with your child or not.

If I think that the other parent may abduct my child, is there anything I can do?

You should immediately contact a lawyer who can help you try to prevent abduction. A court may take steps to prevent the other parent from abducting your child. If you think that the other parent may flee the state with the purpose of kidnapping your child, then there are several things you can do: File a criminal complaint against the other parent (if the other parent is in the process of fleeing the jurisdiction in violation of a court order or with the purpose of kidnapping your child) Attempt to get an emergency Temporary Restraining Order from Family court. If you think that the other parent may try to take your child out of the country, you could ask the court to seize your child's passport so s/he cannot leave the country.

Can I get temporary custody if I have a restraining order against the other parent?

You can ask the court for temporary custody during a proceeding to obtain a restraining order against the other parent. If the court grants you a restraining order against the other parent, then the court will usually issue an order awarding you temporary custody of your child. The court here presumes that it is in the best interest of your child to award custody to the non-abusive parent.

Can I get temporary emergency custody?

Maybe. Even if you would not be able to bring a permanent custody action in New Jersey because it is not your child's "home state", you may file for temporary emergency custody in a New Jersey court so long as your child is currently living in the state. If the court feels it is necessary in an emergency to protect you or your child from mistreatment or abuse, a judge will grant an order of temporary emergency custody. You will need to prove to the judge that there is immediate and present danger of abuse and it is necessary to protect you or your children. If you have strong proof that your child is in danger, a judge will usually grant temporary emergency custody. Some judges do not require much proof, while others almost never grant temporary emergency custody. Usually, in New Jersey, when a temporary restraining order is issued, temporary physical custody of the children is granted to the victim at that time. In domestic violence restraining orders, emergency temporary custody of the child is routinely granted to the non-abusive parent until there is a hearing for a permanent restraining order. A visitation schedule for the other parent may be included in the temporary restraining order but often, the abuser is not allowed to have any contact with the child until the hearing for the permanent restraining order. During the hearing for a permanent restraining order, the judge will determine who will be granted temporary physical custody of the children and what visitation rights the other parent will have until there is a child custody proceeding. If a temporary restraining order is not issued, a parent (or other caretaker of the child) can apply for temporary physical custody by filing a Complaint for Custody. If you have not filed any motions with the court before this, then you can file an "Order to Show Cause" with a "Verified Complaint." If a Complaint has already been filed, an Order to Show Cause can be filed at any time if there are developing issues that need to be addressed with regard to custody. In this situation, it is very unlikely that you will get emergency custody if you do not have a lawyer helping you. Therefore we recommend that you ask a lawyer for advice in this situation.

To learn more about how Villani and DeLuca can help you with your child custody issues in New Jersey please contact partner Vincent C. DeLuca esq at 732.892.9050 today. We represent families throughout Ocean and Monmouth County New Jersey.