Custody & Visitation in New Jersey
Puff & Cockerill LLC practices in many areas ofDivorce and Family Law, one of which is the area dealing with minor children (those who are under 18, or still in the care of their parents, or another family member) Child Custody. Puff & Cockerill LLC is of the opinion that family matters require an attorney familiar with Divorce Law and Child Custody because usually the stakes are more than merely financial, also involving the more important issues of children and family relationships, such as Child Custody.
It is very important to keep in mind that when there is a Divorce or Child custody case, although parents of a child have decided for whatever reasons that they no longer wish to be together, that they will continue to have a relationship with their child, and will most likely communicate with each other regarding that child, and child Custody, for the rest of their lives. The primary concern with Divorce and Child Custody issues in a case involving a child is the "Best Interest of the Child". Children should not be used as pawns in Child Custody hearings, and decisions should not be made to "punish" the other parent in a divorce, as it deeply affects the well-being of your innocent child.
Below are some of the frequent questions from divorce or Child Custody cases which arise when there is a child involved in a family law or Divorce case. Should you need further information, however, please do not hesitate to contact us if you need further information.
Question: What rights does a natural parent have to a minor child in terms of child Custody cases?
Answer:If there is no Court Order in place, then there is the presumption that both parents have equal right to a child, especially if the parents have been residing together either as a married couple, or as boyfriend and girlfriend.
However, if the parents have not lived together for an extended period of time, there is a presumption that the parent with whom the child has resided has greater custodial rights to that child for child custody purposes.
After a custody order is entered, it may be termed as "temporary custody." In New Jersey, all child custody orders are "temporary" and not "permanent" because they are subject to change in the future. They can be changed for good cause, based on the consent of the parties, or for other reasons, with the Court always taking the "best interests of the child" into account.
A natural parent's rights to a child may be terminated in extreme cases or in an adoption proceeding. Please see those topics below.
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Question: What are the different types of Divorce Court proceedings which can decide the issues of custody, visitation, and support?
Answer: All three of these Divorce issues can be addressed in a Complaint for Support, a Complaint for Custody, a Complaint for Visitation, a Domestic Violence Complaint, or a Complaint for Divorce.
The first three types are called "non-dissolution" complaints, because they do not seek to dissolve a marriage, and the first "hearing" in those types of cases are informal, and are conducted by a hearing officer from the County Probation Department. If no agreement can be reached in the informal hearing, then the case goes before a Judge. Puff & Cockerill LLC always recommends that you retain an attorney for a Divorce Court appearance in a contested matter.
A Complaint brought under the Prevention of Domestic Violence Act is not brought primarily to determine the rights with respect to a child, but rather to obtain the protection of the State from an individual who has put you in fear of physical harm. However, once the Court finds that an act of domestic violence has occurred, it can also address issues of custody, visitation, and child support. These hearings are always formal, in front of a Judge, and Puff & Cockerill LLC recommends that you retain an attorney to represent your interests at a Domestic Violence hearing, whether you are a Plaintiff (victim) or Defendant (accused).
A Complaint for Divorce is a "dissolution proceeding" which is brought primarily to dissolve a marriage. Some of the issues which are involved in a divorce where there are children include custody, support & visitation. Hearings in divorce cases are always before a Judge. Puff & Cockerill LLC can help you identify the different divorce issues, negotiate a Divorce agreement, and advise what your chances are with respect to child custody, child visitation and child support, as well as represent your Divorce interests in Court.
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Question: What are the different types of child custodial arrangements in New Jersey?
Answer: There are six different types of rights that a person may have to a child in New Jersey:
- Joint Legal Custody: Sometimes this is called "shared custody." This type of child custodial arrangement basically involves how the parents are to make decisions with respect to the child's welfare, education and health. For instance, if a child is to get his or her tonsils out, parents who have joint custody should both be involved in the decision as to what doctor to go to, whether the procedure is necessary, etc.
The parent who has the child in his or her care for more than 50% of the time is usually deemed the "primary caretaker" or the "primary custodial parent." This is helpful in determining what school system the child will attend, the address to be used for medical records, and sometimes tax issues. It is important with this type of arrangement that the parties can put aside the differences which led to their breakup, so that they can civilly discuss issues important in raising their child.
Many people think that "joint legal custody" means that each party has the child 50% of the time. That is not the case, that is "joint physical custody," explained below.
- Joint Physical Custody: This is exactly like Joint Legal Custody, except each parent has physical custody of the child half or close to half of the time. This type of arrangement is very rare, as usually there is one parent who has the child most of the time, creating a stable environment for the child, while continuing to foster a relationship with the other parent. However, there are some situations where this type of arrangement could work, especially where the parties reside in the same school district in a close proximity to each other.
- Sole Custody: In this arrangement, one parent is deemed the custodian of the child, and the child most likely resides with and spends most of his time with that parent. The custodial parent has the ability to make unilateral decisions regarding education, health and welfare regarding the child. Usually the other parent then has a right to visitation.
- Unsupervised Visitation: The parent who has visitation rights does not have the decision-making rights of a custodial parent, as explained above, but has the right to enjoy time with the child. Visitation can be termed "reasonable and liberal" where the parties can discuss and easily decide when the noncustodial parent will exercise visitation. All requests and decisions regarding visitation should be reasonable and far enough in advance so as to not inconvenience the other parent or the child. In many situations, there is a set visitation schedule, which the parties have agreed to or that the Court has Ordered. It is important to know that the parties can agree to modify the schedule, but both parents must agree. It is recommended that any changes be written, so as to avoid any future problems. Also, any set schedule is the minimum visitation that a party is entitled, and the parties can agree to any additional time, as they see fit. Set schedules are helpful to both the parents and the child, as everyone can plan events and appointments based on the time with the child. Therefore, it is important that the visitation begins and ends on time, so that the other parent is not inconvenienced and their schedule disrupted.
- Supervised Visitation: Supervised visitation is ordered in certain matters where there is a concern about the safety of a child with the noncustodial parent. There may be allegations of abuse, neglect, or of a drug or alcohol problem which may affect the noncustodial parent's ability to properly care for the child during visitation. Also, supervised visitation may be ordered where the child is a newborn and the noncustodial parent does not have the parenting skills to care for the child, or where the child has not had contact with the parent for an extended period of time and is uncomfortable with the parent. A supervisor may be another family member, or a mutual friend that the custodial party trusts, and that the noncustodial party feels comfortable with. In extreme cases, supervised visitation is held at a Court or public facility created for that purpose. Another form of supervised visitation is visitation is a public place, such as a restaurant or a mall. Sometimes this is a recommend way to start visitation when the relationship between the parent and child is tense. It should always be the goal of supervised visitation to ease the parent into an unsupervised visitation schedule. If the circumstance which led to the supervision requirement is one that may be helped with professional counseling or education programs, such as abuse counseling, alcohol or drug rehabilitation, or parenting classes, the parent should participate in these programs and strive to overcome the problems, so that visitation can be less restrictive.
Termination of Parental Rights: It is important to note that if a parent has sole custody of a child, the other parent's parental rights have not been terminated. The other parent still has the right to enjoy visitation with the child, and still has the obligation under law to contribute to the support of the child. The relationship between a parent and child is a legal one which requires an Order from a Court to sever.
The termination of a parent's rights is a serious matter, and one that the Court does not take lightly. Usually, it occurs in one of two circumstances: Abuse and Neglect or Adoption. Termination of parental rights is usually not an option when a situation exists where a parent has not paid support for an extended period of time or has not seen the child for an extended period of time.
- Abuse and Neglect. This type of proceeding is brought by the Division of Youth and Family Services (DYFS), which is a State entity. If, in the opinion of the State, the parent has endangered the health or welfare of a child, the State may determine that it is in the child's best interests to terminate the relationship with the natural parent. If you feel that a child is suffering because of physical, psychological or sexual abuse, or that a child is not being cared for properly, such as malnutrition or unsanitary conditions, Puff & Cockerill LLC strongly encourages you to contact DYFS, so that they can conduct an investigation.
- Adoption. Sometimes, when a parent remarries, they want their new spouse to adopt the child. To take place, a legal relationship needs to be established by the Court. However, in order to create this relationship, the legal relationship with the noncustodial parent needs to be terminated. What this means in plain language is that the noncustodial parent will no longer have the obligation to support the child, the child will no longer have the rights of inheritance (unless the noncustodial parent includes the child in their will), and most likely will not have visitation rights to the child. With the creation of the new relationship, the adoptive step-parent will have the obligation to support the child, have the rights to visit the child (if the parents separate), and the child will have the rights of inheritance (unless he is specifically disowned in the will).
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Question: What is Divorce mediation?
Answer: Divorce Mediation is a program which some County Court systems in New Jersey use to try to facilitate agreements between parents regarding numerous issues, including those concerning visitation and custody. County mediators are certified and are professionals. It is important to remember that it is more beneficial to try to reach a compromise than to roll the dice with a judge.
However, mediation does not work in every case, and is not recommended when parties cannot speak without arguing, cannot listen to each other, and are not willing to compromise. Additionally, mediation is not recommended when there is a recent history of abuse between the parties.
The information set forth above constitutes general answers to certain questions pertaining to New Jersey Law and is not intended or designed to replace the advice of an attorney after a careful review of the individual facts of your case. Please read our site wide legal disclosure.
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