Child Custody & Visitation

1. In the case of Grover v. Terlaje, __ N.J. Super. __ (App. Div. 2005) [Docket No. A-6543-03T5, decided August 4, 2005] the court held that although joint "legal custody" is favored ("joint legal custody" is the "authority and responsibility for making 'major' decisions regarding the child's welfare"), in the context of Domestic Violence, the presumption in favor of awarding custody to "the non-abusive spouse" embodied in N.J.S.A. 2C:25-29b(11) relates to legal as well as physical custody. However, the presumption in favor of the "non-abusive spouse" having legal and physical custody of a child weakens as time passes without any conduct which can be said to jeopardize the "non-abusive spouse" or the child; and if it can be established that the joint legal custodians will be able to communicate about the child. Child custody is always subject to consideration of the "best interests" of the child, and is never "permanent."



2. Law Lessons on Child Custody, from Beddini v. Monaghan (Appellate Division, A-7112-03T5, October 12, 2005, not approved for publication):
   
   "Both parents have a fundamental right to the care and custody of their children." Sacharow v. Sacharow, 177 N.J. 62, 79 (2003). Since the parent has this fundamental right, the State's intrusion is limited to situations either with "exceptional circumstances" or where harm could befall the child. Ibid.
   
   Sometimes, however, when both parents seek custody of their child, it is not the State that seeks to impair a parent's rights. Ibid. In this situation, both of the parents possess this fundamental right, and neither parent has a stronger right than the other. Ibid. When the adversarial parents submit their custody issue to the court, the State effectively becomes a "mediator by necessity." Id. at 79-80. Each party "invok[es] the jurisdiction of the Family Part, . . . [and] assent[s] to the possibility that there will be some curtailment of what would otherwise be the ordinary rights concomitant to parenthood." Id. at 80. For example, the parties consent to the possibility that they could lose custody rights, visitation rights, and vacation time. N.J.S.A. 9:2-2; N.J.S.A. 9:2-4.
   
   "In such cases, the sole benchmark is the best interests of the child." Ibid. When determining what is in the minor's "best interest[s]," "'the paramount consideration is the safety, happiness, physical, mental and moral welfare of the child.'" Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
   
   The statutory scheme specifically addresses some, but not all, of the factors a court should consider when determining the custody arrangement that is in the minor's best interests. 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. [N.J.S.A. 9:2-4c.]
   
   In addition to the statutory factors, the court is also required to "consider and articulate why its custody decision is deemed to be in the child's best interest." Terry, 270 N.J. Super. at 119.
   
   The court also has the authority to modify a custody award after a finding of changed circumstances.



3. Legal Lessons from Conahan v. Klingenberg (App. Div., A-4579-04T4, November 29, 2005, not approved for publication): "[I]n an action between a parent and a third party, a presumption of custody exists in favor of the parent." Watkins v. Nelson, 163 N.J. 235, 244 (2000). "A third party can overcome that presumption by satisfying the standard required for termination of the rights of a nonconsenting parent: unfitness, abandonment, gross misconduct, or 'exceptional circumstances.'" Id. at 244-45. "[W]hen a third party . . . establishes psychological parentage with the child, the third party stands in the shoes of a natural parent. That means that when the 'exceptional circumstances' prong is satisfied, for example by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child's best interest . . . ." Id. at 254. Psychological parenthood is established by showing: the parent has consented to and fostered the third party's relationship with the child; the third party has lived with the child; the third party has functioned as a parent to a significant degree; and a parental bond has been formed. V.C. v. M.J.B., 163 N.J. 200, 223 (2000).



4. Interference with custody can be a criminal offence -- see: N.J.S.A. 2C:13-4. In addition to any other disposition provided by law, a person convicted of this crime shall make restitution of all reasonable expenses and costs, including reasonable counsel fees, incurred by the other parent in securing the child's return.



5. Law Lessons from: WILSON v. WILSON (App. Div., A-3626-04T4, April 3, 2006, not approved for publication):
   
   The party seeking to modify custody must demonstrate changed circumstances which affect the welfare of the children. Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).
   
   Custody orders are temporary in nature and may be changed at any time in accord with future conditions and circumstances. Borys, 76 N.J. at 111; Sheehan, 51 N.J. Super. at 287.



6. Law Lessons from: JONES v. CAPORUSSO (App. Div., A-3787-04T2, April 4, 2006, not approved for publication):
   
   N.J.S.A. 2A:34-66a provides that a New Jersey court that has made an initial custody determination continues to have "exclusive" jurisdiction until: (1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or (2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.
   
   The Uniform Child Custody and Jurisdiction Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the UCCJEA) permits a state which has become the child's "home state" to modify the original order of another state, but only if a court in the state of original jurisdiction determines that it no longer has continuing exclusive jurisdiction or that another jurisdiction would "be a more convenient forum," see N.J.S.A. 2A:34-67a ; or when neither the child nor a parent continues to reside in the original jurisdiction. See N.J.S.A. 2A:34-67b.
   
   [U]nder the UCCJEA, the Family Part has no jurisdiction to modify the custody order of another state unless New Jersey is the home state of the child, N.J.S.A. 2A:34-65a(1), or a court of another state does not have home-state jurisdiction, or a court of the child's home state has declined to exercise jurisdiction on the ground that New Jersey is the more appropriate forum under N.J.S.A. 2A:34-71 or N.J.S.A. 2A:34-72, and the child and the child's parents, or the child and at least one parent have a "significant connection" with New Jersey other than mere physical presence, and "substantial evidence" is available in New Jersey concerning the child's care, protection, training and personal relationships. Stated differently, under the UCCJEA, a court determining jurisdiction does not reach the "significant connection" and "substantial evidence" tests unless the court of the other state does not have home-state jurisdiction or — having home-state jurisdiction — has declined to exercise custody jurisdiction because it has determined that New Jersey is the more appropriate forum. [Poluhovich v. Pellerano, 373 N.J. Super. 319, 362 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005).]



7. Ronan v. Adely, 182 N.J. 103 (2004):
   
   In Gubernat v. Deremer, 140 N.J. 120, 141-42 (1995), the Court concluded that gender-based presumptions should play no part in a child's surname and that in resolving disagreements between parents concerning a child's surname, “we apply the best-interests-of-the-child standard.” Id. at 141. This standard applies whether the child is born in or out of wedlock. Id. at 139.
   
   N.J.S.A. 8:2-1.3(a)(2) provides that where both parents have custody of the child, are both available, and disagree on the selection of a surname, “the child shall be given a hyphenated surname based on alphabetical order.” However, when the primary caretaker seeks to name or change the surname of a child, there is a presumption in favor of the primary caretaker that the name selected is in the best interests of the child. That presumption may be rebutted by proof offered by the secondary caretaker that the name change is not in the best interests of the child.



8. Law Lessons from NOLAN v. FLECK (App. Div., A-5727-04T2, April 17, 2006, not approved for publication): Judgments concerning custody and parenting time, "whether reached by consent or adjudication, embod[y] a best interests determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). When such a judgment has been made, the "moving party must bear the threshold burden of showing changed circumstances which would affect the welfare of the chil[d]." Ibid. Bare assertions are inadequate. Mastropole v. Mastropole, 181 N.J. Super. 130, 137 (App. Div. 1981).



9. Law Lessons from MARTELL v. RHEA (Appellate Division, A-222-05T5, June 14, 2006, not approved for publication):
   
   "[T]he answer to [a] visitation question must be dictated exclusively by concern for the child's best interests and not by the conflicting desires, wishes or sensibilities of the parents . . . ." See Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982).
   
   The law favors parenting time and requires a judge to enter an order that recognizes the parent's right and protects against harm to the child. See Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); N.J.S.A. 9:2-4.



10. Court Rules relating to children's rights in a parental dispute:
    
    • N.J. Court Rule 5:8. CUSTODY OF CHILDREN
    • N.J. Court Rule 5:8A. APPOINTMENT OF COUNSEL FOR CHILD
    • N.J. Court Rule 5:8B. APPOINTMENT OF GUARDIAN AD LITEM
    • N.J. Court Rule 5:8C. APPOINTMENT OF COURT APPOINTED SPECIAL ADVOCATE


11. Parental Alienation



12. Removal of Children from New Jersey



13. International Child Abduction



14. Grandparent Rights



15. Other Resources



16. Return to General Topic Index

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