Law Offices of Patricia Garity Smits, L.L.C.
COUNSELLORS AT LAW
Custody
CUSTODY STATUTES AND CASES
N.J.S.A. 9:2-4. LEGISLATIVE FINDINGS AND DECLARATIONS; PARENTS' RIGHT TO CUSTODY EQUAL; CUSTODY ORDER; FACTORS; GUARDIAN AD LITEM; AGREEMENT AS TO CUSTODY
The Legislature finds and declares that it is in 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. 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:
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. and the age and number of the children.
A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.
The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child's interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties to the litigation.
d. The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.
e. In any case in which the parents cannot agree to a custody arrangement, the court may require eachnparent to submit a custody plan which the court shall consider in awarding custody.
f. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents.
N.J.S.A. 9:2-2. CUSTODY OF CHILDREN OF DIVORCED OR SEPARATED PARENTS WITHIN JURISDICTION OF SUPERIOR COURT; REMOVAL FROM JURISDICTION; CONSENT; SECURITY
When the superior court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this state, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age . Without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.
N.J.S.A. 9:2-3. CUSTODY OF CHILD OF PARENTS LIVING SEPARATELY; ACTION IN SUPERIOR COURT; POWERS OF COURT; JUDGMENTS; TEMPORARY CUSTODY; EXCLUSION FROM HEARING; RECORDS NOT OPEN TO PUBLIC INSPECTION
When the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as concerning a minor child whose parents are divorced. Until the court determines the final custody of the minor child and unless the parties agree otherwise, the court shall determine temporary custody based upon the best interests of the child with due regard to the caretaking arrangement that previously existed. No child shall be taken forcibly or against the will of the parent having custody by the other parent without a court order. If the child has not, at the time of the commencement of the action, reached the age of 16 years, and if it is represented to the court by affidavit or under oath that evidence will be adduced involving the moral turpitude of either parent, or of the minor child, or that evidence will be adduced which may reflect upon the good reputation or social standing of the child, then the court shall admit to the hearing of such case only such persons as are directly interested in the matter then being heard. The records of such proceedings, including all papers filed with the court, shall be withheld from indiscriminate public inspection, but shall be open to inspection by the parents, or their attorneys, and to no other person except by order of the court made for that purpose.
FACTORS TO BE CONSIDERED WHEN A PARENT WISHES TO MOVE OUT OF STATE WITH THE CHILDREN AFTER AN INITIAL CUSTODY DETERMINATION HAS BEEN MADE OR AGREED UPON
The New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001) held that:
In assessing whether to grant custodial parent's application to remove child from jurisdiction over noncustodial parent's objection, court should look to following factors relevant to custodial parent's burden of proving good faith and that move will not be inimical to child's interest:
(1) reasons given for the move;
(2) reasons given for the opposition to the move;
(3) past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing 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 custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed;
(8) the effect of 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 ability to relocate;
(12) any other factor bearing on child's interest
NOTE: These factors are not used if the parties have actual joint residential custody determined by the amount of time that each parent spends with the child(ren), not by what the designation that the parties give to their parenting arrangement.
GRANDPARENT/SIBLING VISITATION
N.J.S.A. 9:2-7.1. VISITATION RIGHTS FOR GRANDPARENTS OR SIBLINGS
a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.
NOTE: The state of grandparent visitation is in flux as a result of the United States Supreme Court case of Troxel v. Granville, 530 US 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and the New Jersey Appellate Division case Wilde v. Wilde, 341 N.J. Super. 381 (App. Div. 2001). In Wilde, the Appellate Division held that the Grandparent Visitation Statute was unconstitutional as applied because (1) the grandparents had resorted to the courts before making substantial efforts to repair the breach between them and a fit parent, (2) had threatened litigation before visitation had been denied with finality, and (3) had mistreated the parent during the litigation by denouncing, demeaning, and impugning her character. While the grandparents in Wilde did not seek review of the Appellate Division’s decision, grandparents in Moriarty v. Bradt, et al., 174 N.J. 189, (2002) have been granted Certification by the New Jersey Supreme Court. Note that the Appellate Division decision in Moriarty relied heavily on Wilde and Troxel in determining that the New Jersey Grandparent Visitation Statute was unconstitutional as applied where the trial court awarded the grandparents more than the natural father offered. This decision should be decided by the New Jersey Supreme Court in 2003.