Establishing Child Custody in a New Jersey Divorce

The process of establishing child custody during a divorce shares some important similarities and has some distinct differences from the other primary issues involved in bringing a marriage to an end.

Like the other aspects of a divorce, divorcing spouses are permitted (and in fact encouraged) to negotiate custody terms without court involvement; and, even if they go to court, they still have the ability to come to terms amicably prior to trial.

However, once the judicial process is initiated, there are some additional procedures involved that are unique to child custody determinations; and, in all cases, custody determinations must be made based upon a set of factors designed to protect the best interests of the children involved.

Here is a brief introduction to some of the unique aspects of establishing child custody during a divorce in New Jersey:

1. The “Best Interests” Factors

When establishing custody and parenting time arrangements, divorcing spouses and the New Jersey courts must focus on doing what is best for the couple’s children. New Jersey law (N.J.S.A. Section 9:2-4) establishes a list of fourteen “best interests” factors that must be considered in all custody-related matters:

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 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 time spent with the child before or subsequent to the separation;
13. the parents’ employment responsibilities; and
14. the age and number of the children.

Depending on a divorcing couple’s family circumstances, certain factors may weigh more heavily than others, and additional considerations may be relevant to the “best interests” determination as well.

2. Appointment of a Guardian ad Litem

If warranted by the circumstances, Section 9:2-4 also grants the New Jersey courts the authority to appoint a guardian ad litem, an attorney, or both to represent the child’s best interests during child custody proceedings.

The appointment of a guardian ad litem can be done upon the motion of either parent (and subject to a showing of “good cause”), or on the court’s own initiative.

The costs of the appointed guardian ad litem and/or attorney may be assessed to both parents during their divorce litigation.

3. Mandatory Mediation

If divorcing parents are unable to agree to custody and parenting time terms independently, the judge presiding over their divorce can order them to participate in mandatory custody mediation. Under the right circumstances, child custody mediation can offer significant benefits, and divorcing couples are frequently successful in using mediation to arrive at mutually-agreeable terms.

4. Child Custody Evaluations

If you and your spouse cannot come to terms through negotiation or mediation, then the court may order the performance of a child custody evaluation. These evaluations are generally performed by a forensic psychologist selected by the court or by mutual agreement of the parties (when the court appoints an evaluator, each spouse may choose to have an independent evaluation conducted as well).

If you are facing a child custody evaluation, there are several important steps you should take to prepare.

Learn more in: Preparing for the Child Custody Evaluation During Your NJ Divorce.

Speak with an NJ Divorce Attorney in Confidence

If you would like more information about the steps involved in establishing child custody and parenting time during a divorce in New Jersey, we encourage you to contact us for an initial case evaluation. To speak with one of our experienced Hackensack divorce attorneys in confidence, please call (201) 880-9770 or request an appointment online today.

Carrie S. Schultz, Esq. – author

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