Can My Illness Affect Child Custody in NJ?

How is Child Custody Determined?

Illness Affect Child CustodyWhen determining child custody in a divorce proceeding, the court uses a standard which takes into account the children’s needs.  This standard is known as the “best interest of the child,” which requires a look into several different factors to determine what arrangement would best serve the child or children and their day to day necessities. Under N.J.S.A. 9:2-4, the factors to be considered are:

  • The parent’s ability to agree, communicate and cooperate regarding the child;
  • The parent’s willingness to accept custody and share custody with the other parent;
  • Any history of domestic violence;
  • The child’s and either parent’s safety from physical abuse by the other parent;
  • The child’s needs;
  • The age and number of the children;
  • The preference of the child if he or she is capable of forming an intelligent decision;
  • The quality and continuity of the child’s education;
  • The distance between the parents’ homes;
  • The stability of each parent’s home environment;
  • The amount and quality of time spent with the child before the divorce;
  • The parent’s employment responsibilities; and
  • The fitness of the parents to raise the child.

Although the court must take these specific factors into consideration, they are not prevented from examining other factors as well. In addition to considering the best interest of the child, the court also looks into the potential harm that could affect the child due to any changes in the relationship with either parent.

Can Illness Affect Child Custody?

In this world, a person’s professional and personal life can change in a heartbeat. Knowing this, courts take into consideration the parent’s present life style and acknowledge that certain factors can change in the future. In the case A.W. v. T.D., a case recently decided by the Superior Court of New Jersey, the Court found that transferring residential custody from a mother recently diagnosed with terminal cancer to the father did not fall into the best interests of the child. In making this determination, the court had to balance both the rights of the parents as well as the rights of the children, the welfare and rights of the child normally prevailing.

In analyzing New Jersey statutes, the court found that custody does not only involve the physical needs of the child, such as food and shelter. It also involves the emotional needs of the child, which requires an analysis of the specific facts of each case. The court stressed that in this situation and others involving the illness of one parent, it is crucial that communication is kept between both parents. It is in the best interests of the child for both parents to be up to date on the physical status and any new developments of the sick parent so that accommodations can be made. Lastly, after analyzing the best interests of the child, the court looked into the physical and emotional harm that the children could face being removed from their mother’s custody. The court found that the children could suffer a severe amount of emotional harm by being separated from their already dying mother.

The parent who seeks to modify the child custody arrangements has a burden to show that a substantial change has occurred in the arrangement which could affect the welfare of the child and that modifying the arrangement is in the best interest of the child, which the father in this case failed to accomplish. The court took into consideration the fact that although the mother’s circumstances will probably change in the future, her present ability to care for her children was still intact, making her capable to retain the custody of her children.

Having Child Custody Issues in NJ?

If you have recently undergone a life changing event which could affect your child custody arrangement, you need an attorney who has the experience in protecting your rights. Partner Vincent C. DeLuca of Villani & DeLuca has successfully mediated hundreds of divorcing individuals in matters where child custody was in dispute. He is certified by the Supreme Court as a Matrimonial Law Attorney and he also has been approved by the Supreme Court of New Jersey as an Economic Mediator. If you’d like to discuss your current child custody arrangements with an experienced child custody lawyer, please call Villani & DeLuca at (732) 965-3350 today and schedule your initial consultation.