If you ask someone the first thing that they think of when you say “custody” they usually respond with “battle”. There is certainly a perception that custody is almost always a “battle”. While that can be true, it is not always the case.
In New Jersey, parents’ rights are considered equal unless they agree or a Court determines otherwise. There is very strong belief that the people best suited to determine their children’s futures in the face of a break up or divorce are their parents. After all, no matter who the attorneys, the experts or the Judge, no one will ever be more expert in their lives and their children than the parents themselves. That is why our legislature made clear that:
“it is the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.”
A child has both “the right and privilege…in getting to know, love and respect both parents…no court should permit either parent to interfere with the successful attainment of these facets of a child’s welfare.” Fiore v. Fiore, 49 N.J. Super. 219, 228 (App. Div. 1958). That is why Rule 5:8-1 requires that, unless there is an active domestic violence restraining order in place between the parties, they attend Court-ordered mediation.
Rule 5:8-1 provides that “In family actions in which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue, the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5” and that while mediation is pending, “the parties shall not be required to participate in custody evaluations with any expert” though they may agree to do so. The hope is that with the assistance of a neutral third party to act as a mediator, the parties can reach a mutually agreeable resolution of their custody and parenting time issues and no further Court involvement will be necessary.
Very often, that is the case. Mediation generally tends to be successful, but that is not always true. If custody or parenting time cannot be resolved at mediation what happens? Well, a lot of things, all steps on a course to a Custody Trial.
Under the Court Rules, if mediation does not succeed, the Court can then set a preliminary custody/parenting time arrangement pending trial, appoint custody experts, order custody evaluations, and can even order that an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family, the financial ability of the party to pay alimony or support or both, and the parties’ homes, including a description of the home where the child will reside or visit, appropriate child safety precautions in the home, number of household members and their relationship to the child, and criminal record checks for both parties.
Custody evaluations are expensive and time-consuming and can take a significant amount of time to conduct. Lots of litigants simply cannot afford a custody evaluation and go without. It is not uncommon for the Court to try custody cases without any experts for either party. It does not change the Court’s job, but it can make it a bit harder without the expertise of a recognized custody evaluator. Sometimes, after having gotten the custody evaluation completed, the parties are then able to reach a resolution of their matter without judicial intervention and they rely upon the evaluation as a guide to help them work it out between them.
That is not always the case, however. If custody/parenting time is still not resolved, it will eventually go to a Custody Trial. Family Court matters are bench trials, meaning there is no jury and the sitting judge assigned to the matter hears and decides the case. In doing so, the Court is required to exercise its authority to act in the best interests of the children which is defined as “the paramount consideration [of] the safety, happiness, physical, mental and moral welfare of the child” See also Terry v. Terry, 270 N.J. Super. 105, (App. Div. 1994); Unger v. Unger, 274 N.J. Super. 532 (Ch. Div. 1994); Ali v. Ali, 279 N.J. Super. 154 (Ch. Div. 1995).
N.J.S.A. 2A:34-23 and N.J.S.A. 9:2-4 then identifies the Court’s authority in making custody determinations. N.J.S.A. 2A:34-23 provides:
“…[t]he court may make such order as to… the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just…”
N.J.S.A. 9:2-4 then provides:
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.
N.J.S.A. 9:2-4(c) identifies the mandatory factors the Court must consider in determining the best interests of the children:
1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
3. The interaction and relationship of the child with its parents and siblings;
4. The history of domestic violence, if any;
5. The safety of the child and the safety of either parent from physical abuse by the other parent;
6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
7. The needs of the child;
8. The stability of the home environment offered;
9. The quality and continuity of the child’s education;
10. The fitness of the parents;
11. The geographical proximity of the parents’ homes;
12. The extent and quality of the time spent with the child prior to or subsequent to the separation;
13. The parents’ employment responsibilities;
14. The age and number of the children.
Should custody disputes turn into knock-down, drag-out fights? No, they shouldn’t except in the rarest of cases. Remember, the other party is that child’s other parent. This is the person with whom you have chosen to have children. The single best thing you can do for your children is effectively co-parent with the other party. Your children did not break up with or divorce either of you and continue to deserve to have relationships with both parents unless there is a good reason why it is not in their best interests to do so.
Unfortunately, sometimes that is not possible, the “battle” is unavoidable, the damage is tremendous and the Court has to make the decision. The Court will do its job and will decide what IT finds to be YOUR child’s best interests, looking from your child’s perspective up, not from the parents’ perspective down. What that decision will be, whether it really is best or not, who knows but if presented to the Court as a “battle” everyone loses, especially the children.
Julie Burick, Esq. is a Partner with the firm and focuses her practices on all aspects of divorce and family law, including child custody issues.
Adinolfi, Molotsky, Burick & Falkenstein is a boutique Divorce and Family Law firm located in Haddonfield, New Jersey. AMBF maintains our historic commitment to delivering compassionate counsel based on the law, experience, and practical solutions. No matter what level of complexity your divorce or family law issue may entail, our firm has the experience and resources to address your unique situation.