Child Custody

Attachment parenting II

Our courts no longer rely upon the tender years doctrine; i.e., a mother is not presumed to be the best parent to take care of young children.

When both parents have a fundamental right to care and nurture their children and neither has a preeminent right over the other, the sole benchmark is the best interest of the child. The court must focus on the child’s safety, happiness, physical, mental and moral welfare. Thus, generally, in any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include:

a. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include:

(1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and

(2) provisions for consultation between the parents in making major decisions regarding the child’s health, education and general welfare;

b. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or

c. Any other custody arrangement as the court may determine to be in the best interests of the child.

In making an award of custody, the court shall consider but not be limited to the following factors:

the parents’ ability to agree, communicate and cooperate in matters relating to the child;

the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

the interaction and relationship of the child with its parents and siblings;

the history of domestic violence, if any;

the safety of the child and the safety of either parent from physical abuse by the other parent;

the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

the needs of the child;

the stability of the home environment offered;

the quality and continuity of the child’s education;

the fitness of the parents;

the geographical proximity of the parents’ homes;

the extent and quality of the time spent with the child prior to or subsequent to the separation;

the parents’ employment responsibilities; and

the age and number of the children.

The parents’ work schedules, and one parent’s need to have a third party watch the children while that parent works, are factors to be considered by a court deciding a parenting-time dispute. However, there is no known authority for the proposition that such considerations are presumptively dispositive of parenting-time issues.

As part of a custody hearing, the court may, on its own motion or at the request of a litigant, conduct a private interview with the child(ren).

A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

New Jersey courts are committed to the principle that children of separated parents should be imbued with love and respect for both parents, and where children are in the custody of one parent, the court should endeavor to effect this facet of the children’s welfare by conferring reasonable rights of visitation on the other parent.

Experts

Where experts are selected by the mutual agreement of the parties or independently by the court, neither party is bound by the report of the expert. The parties are not precluded from retaining their own experts, either before or after the appointment of an expert by the court, on the same or similar issues. Once the court-appointed or private expert submits his/her report the parties are thereafter permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition and cross-examine the expert.

Joint Custody

Joint legal custody allows both parents the equal right to legal and physical custody. Under joint custody, the legal authority and responsibility for making ‘major’ decisions regarding the children’s welfare is shared by both parents.

Shared or joint physical custody has been defined as joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time. In determining whether the parties truly share joint physical custody, although the division of the child’s time with each parent is a critical factor, the time each parent spends with the child must be analyzed in the context of each parent’s responsibility for the custodial functions and duties normally reposed in a primary caretaker. A true shared parenting arrangement is rare.

Sole Custody

The parent who has sole legal custody has the legal authority and responsibility for making the ‘major’ decisions regarding the children’s welfare; and the responsibility for minor day-to-day decisions as well; and the responsibility for the physical custody of a child.

However, a parent with sole legal custody has a duty to aid and encourage the sincere efforts of the noncustodial parent to enhance the mutual love, affection and respect between the noncustodial parent and the child.

Removal

A custodial parent must petition the court for approval in order to remove a child from the state without the consent of the other parent. The moving parent must establish that there is both good reason for the move and that the move will not be inimical to the child’s interests (i.e., the moving party bears a two-pronged burden of proving a good faith reason for the move and that the child will not suffer from it), and must propose a visitation schedule.

Once the moving party makes an initial showing in favor of removal, the burden shifts to the non-moving party to produce evidence opposing the move as either not in good faith or inimical to the child’s interest. To successfully establish that relocation is not in the children’s best interest, more than mere separation or change in parenting time must be shown.

In deciding whether removal is warranted, the court will consider:

(1) the reasons given for the move;

(2) the reasons given for the opposition;

(3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;

(4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here;

(5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

(6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

(7) the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;

(8) the effect of the move on extended family relationships here and in the new location;

(9) if the child is of age, his or her preference;

(10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;

(11) whether the noncustodial parent has the ability to relocate;

(12) any other factor bearing on the child’s interest.

Obviously, not all factors will apply in every case and, to the extent that factors are applicable, all may not have equal relevance.

A residential custodial parent’s relocation within the State does not constitute a removal action, requiring advance approval for the proposed relocation. Although approval is not needed to move to another part of the State, when a non-residential custodial parent opposes the intrastate relocation of his or her child by the primary residential custodial parent on the basis that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests, those factors, as well as other relevant matters, should be considered in determining whether modification of the custodial and parenting time arrangement is warranted. Of course, not all factors would be relevant and of equal weight in every case.

Modification

A judgment involving the custody of minor children is subject to modification at any time based on significant changed circumstances that would affect the welfare of the child.Thus, to establish a case for modification of a custody arrangement, the moving party must first show a substantial change in circumstances, and that the changed circumstances affect the welfare of the child such that her best interests would be better served by modifying custody.

When the party seeking modification has made an initial showing of a substantial change in circumstances, then a judge must to consider whether discovery is needed and to define its scope. Following discovery, if there is a genuine dispute of fact regarding the welfare of the child, then a plenary hearing must be held. However, a plenary hearing is not necessary where there is no genuine and substantial factual dispute regarding the welfare of the child.

Psychological Parent

In a custody dispute between a natural parent and a third party, there is a presumption in favor of the natural parent which arises from a parent’s fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and is rooted in the right to privacy. The parent’s right to custody is not absolute, however. The presumption in favor of the parent will be overcome by a showing of gross misconduct, unfitness, neglect, or exceptional circumstances affecting the welfare of the child.

When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of unfitness or exceptional circumstances. If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child.

The two-prong standard for analyzing custody disputes between third-parties and a parent is: First, if the parental termination standard is not met, a finding of “exceptional circumstances” must be satisfied before a third-party is granted custody. Determining that a third-party is a psychological parent is one such exceptional circumstance.

In order to establish that a third-party is a child’s psychological parent, four elements must be demonstrated:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;

(2) that the petitioner and the child lived together in the same household;

(3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation a petitioner’s contribution to a child’s support need not be monetary; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Second: If such a finding of psychological parenthood is made the court must then decide whether awarding custody to the third party would promote the best interests of the child.

Guardian ad Litem

A court may appoint a Guardian ad Litem (GAL) or an attorney or both to represent the minor child’s interests. Once appointed, the GAL provides services to the court on behalf of the child and acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL’s findings and recommendations are submitted to the court.

In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:

1. Interviewing the children and parties.

2. Interviewing other persons possessing relevant information.

3. Obtaining relevant documentary evidence.

4. Conferring with counsel for the parties.

5. Conferring with the court, on notice to counsel.

6. Obtaining the assistance of independent experts, on leave of court.

7. Obtaining the assistance of a lawyer for the child on leave of court.

8. Such other matters as the guardian ad litem may request, on leave of court.

As an investigator acting at the direction of the court, a GAL must report on those facts bearing on a child’s best interest. A GAL would have no perceived bias in favor of one parent’s position because the GAL’s role is to act on behalf of the court and present the best interests of the children. That role, however, would not obviate presentation of evidence refuting a GAL’s factual assertions. Consequently, a parent or other witness may present evidence which clarifies, refutes, or supplements the testimony of the GAL. When faced with evidence of disputed material facts, a judge must permit a plenary hearing in order to reach a resolution. Similarly, disputes implicating the welfare of a child and involving conflicting contentions and opinions of lay and expert affiants must be submitted to a plenary hearing.

Also important is the scope of the GAL’s role. Although acting as a fiduciary on behalf of the court, the GAL’s report and recommendations may never serve as a substitute for the court’s exercise of its parens patriae obligation. Consequently, a trial judge is never bound to accept a GAL’s recommendations, and must never cede responsibility and authority, or abdicate the decision-making role to an expert.

Death of a Parent

In the case of the death of the parent to whom the care and custody of the minor children had been awarded, or in the case of the death of the parent in whose custody the children actually are when the parents have been living separate and no award as to the custody had been made, the care and custody of such minor children does not revert automatically to the surviving parent.

In such a case, the Court shall have the right, in an action brought by a guardian ad litem on behalf of the children, to appoint such friend or other suitable person, guardian of such minor children, and shall have the right to remove such guardian, and to appoint a new guardian or guardians, and to make such judgments and orders, from time to time, as the circumstances of the case and the benefit of the children shall require.

Loss of Jurisdiction

New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA), provides that, even if a New Jersey court enters an initial decision on child custody, the New Jersey court will no longer have jurisdiction to make custody decisions if the child and the parents no longer live here.

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To discuss your specific situation, please call me, Paul G. Kostro, Esq., to schedule an appointment: 908-232-6500 or Paul@Kostro.com

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