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Parent of Primary Residence New Jersey Rights

Posted by Carmine R. Villani | Jul 02, 2022 | 0 Comments

In New Jersey divorces, there are two types of custody: legal custody and residential custody. For the most part, couples getting divorced in New Jersey will share joint legal custody. This means that most major decisions affecting the child's life will need to be agreed upon, such as where the child will attend school, etc., in addition to legal custody arrangements such as residential custody and where the child is going to reside. In a residential custody arrangement where the child lives with one parent more than 50% of the time, that parent is denoted as the “parent of primary residence”. The parent of primary residence is the parent who receives child support from the other parent.

Parent of Primary Residence Obligations in NJ

The parent of primary residence also has an affirmative obligation to keep the other parent informed as to all matters pertaining to the general welfare and well being of the child. The parent of primary residence is typically entrusted with making the day-to-day decisions required in the child's life, such as what time they are going to bed and when they brush their teeth. Typically, the parent of primary residence is the parent with whom the child resides while attending school. The parent of primary residence is also the one who will take the child to their various appointments, including doctor's appointments. The parent who has the child less than 50% of the time is called the “parent of alternative residence”. In the event the parents of a child have a disagreement as to some issue pertaining to the child, the court may defer to the parent of primary residence, as that is the parent who usually makes the decisions on behalf of the child. When the parties getting divorced share joint residential custody, the designation as a parent of primary residence has less significance. If there is a dispute as to which parent will be the parent of primary residence in a New Jersey divorce, the courts will decide the matter using utilizing a “best interest” analysis, i.e., what type of residential custodial arrangement will be in the child's best interests.


How can parents protect their rights?

The best advice for parents seeking to protect their parental rights when going through a divorce is to simply do the right things when it comes to your children. You should be able to communicate with your spouse effectively regrading issues pertaining to the children, as the court will take this into consideration in making custodial determinations. When you are divorcing, the courts make determinations concerning legal and physical custody utilizing what is called a “best interest analysis”. What type of custody arrangement would work best for the children? Should the parties share joint legal and physical custody? Should the parties share joint physical custody only? Should one parent be denoted The amount of time the child spends with each parent is a very important determination that the courts take very seriously. In order to best be prepared for the child custody aspects of your divorce you should arrange for a meeting with an experienced NJ child custody lawyer to discuss the process. During this meeting the lawyer should be able to explain to you how to best position yourself so that your children's interests are properly protected.

What is the process for establishing or changing parental rights?

The process of establishing parental rights is determined during the pendency of your divorce proceeding. All aspects of your child custody arrangements are determined by either mutual agreement between you and your spouse, or they will be determined by a Judge at the time of trial. Decisions such as whether there will be joint legal custody, joint physical custody, or sole legal custody will need to be made. The amount of time that the child spends with either parent is one of the most difficult aspects to resolve in any divorce case.

In order to attempt to secure an acceptable outcome you will need to be properly advised as to how to prepare and handle yourself throughout the divorce proceeding. You will need to be able to demonstrate your ability to care for the child, you will also need to demonstrate what you have historically done for the child, and you will need to demonstrate that you have the ability to co-parent with your soon to be ex-spouse as well. Once your parental rights have been established by either mutual agreement or judicial decree, you will need to subsequently be able to demonstrate a substantial change in circumstances in order to change what has previously been agreed to or decided by the court. There are two ways to change or modify a child custody agreement or order. One of which is to obtain the other parties' consent to modify the existing agreement. If that is not possible, you will then need to file a motion with the court. A modification of your custody arrangement may be warranted if it is ultimately determined that such a change is in the child's best interests.

What are some common issues that arise with parental rights?

Some of the most common issues that arise in New Jersey concerning parental rights involve lack of cooperation and communication between the parents of the child. Disagreements about pick up and drop off times, keeping the other parent informed as to events or important issues that arise during the other parents parenting time, not showing up for the allotted parenting time, denying access to the child by the other parent, not allowing the other parent to travel out of state with the child, disagreements over vaccination protocol for the child, rendering a determination as to summer camp, what extra activities the child will engage in as well as the payment for those activities, the choice of college for the child, the appropriate age for the child to be able to utilize a cell phone, the payment of car related expenses for the child when the child reaches the appropriate age, etc. As one can see from the somewhat extensive list above, there are quite a number of issues that arise when couples have children together and they subsequently separate. That is why it is vitally important that all aspects of your custody agreement are carefully drafted when you are getting divorced. Determinations pertaining to legal and physical custody are very important and have long lasting implications. Child custody needs to be handled the right way in order to avoid a lifetime of confusion and continued litigation.

How can parents resolve disputes peacefully?

The best way for parents to resolve disputes peacefully is to keep open the lines of communication with one another and attempt to problem-solve collaboratively. A very effective way to do this is through the mediation process. Whether you are contemplating a divorce or you are divorced already does not matter, as mediation is a great way to amicably resolve your disputes in either situation. Mediation is a solution-based process wherein nothing is finalized unless both parties agree. This gives you and your spouse the ability to work together in a non-adversarial environment to resolve your differences.

An experienced child custody mediator can help you decide issues such as joint legal and residential custody, who should be the parent of primary residence, who should be the parent of alternate residence, whether the two of you can share joint physical custody, whether sole legal custody should be awarded, how much time the child spends with each of you, etc.

Can grandparents obtain parental rights?

In New Jersey, Grandparents have rights to request visitation with their grandchildren, however, those rights can be somewhat limited. The grandparent seeking the visitation has the burden of proof to demonstrate to the court that such visitation is in the child's best interests. The grandparent's relationship with the child's parents is a factor in this determination, as is the relationship between the grandparent and the child. Grandparents typically seek visitation through the courts when the parents of the child are either getting divorced, one of the parents of child passes away, or if there has been a breakdown in the relationship between the grandparent and the parent of the child. Recent case law has limited grandparents' rights in New Jersey. The stronger the relationship between the grandparent and the child, the greater the likelihood of success in obtaining visitation for the grandparents.

Need help with your child custody case? Look no further than the divorce and child custody lawyers at Villani & DeLuca.

Child custody determinations are complicated, fact sensitive issues that are determined in New Jersey divorces on a case-by-case basis. The child custody and divorce lawyers at Villani and DeLuca have over 100 years of aggregate experience in addressing these types of issues on behalf of our clients. We can explain to you all of the issues pertaining to custody and how the courts decide those issues. We will help you to properly prepare for a custody dispute and address all issues inclusive of the parent of primary custody issue on your behalf. The divorce and custody lawyers at Villani and DeLuca offer an in person or virtual free consultation to discuss all aspects of your contemplated divorce and custody case. Our main office is located at 703 Richmond Avenue in Point Pleasant Beach, New Jersey and we serve client's needs throughout the entire state of New Jersey.

About the Author

Carmine R. Villani

Founding partner, Carmine Villani, Esq. is a former municipal prosecutor with over three decades of experience in Criminal and DWI Defense.


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