There are two kinds of custody
Legal custody is about decisions. It says who can make the major calls on the child's health, education and general welfare, including decisions about religion. It also carries the right to get at the child's school records and medical records.
Physical custody is about where the child actually lives.
They are decided separately. It is normal to share one and not the other.
Sole or joint legal custody
With joint legal custody, both of you are part of the major decisions. With sole legal custody, one parent makes all of them and the other makes none.
Sole legal custody is uncommon in New Jersey. It tends to come up where one parent simply cannot work with the other on decisions for the child, in cases involving domestic violence, substance abuse, neglect, turning the child against the other parent, or a complete breakdown in communication.
Primary or shared physical custody
Where one parent has primary physical custody, the child lives with that parent. The other parent has the child less than an average of two nights a week, or the equivalent, plus vacation time.
Shared physical custody means the child spends more than an average of two nights a week with each parent. These arrangements vary enormously from family to family. Sometimes it is a little over two nights with one parent and the rest with the other. Sometimes the nights are split down the middle.
What the court weighs
If the two of you agree on an arrangement, the court will grant it, so long as it is not against the child's best interests. If you cannot agree, the court decides. Under N.J.S.A. 9:2-4 it looks at, among other things:
- Whether the parents can agree, communicate and cooperate about the child
- Whether each parent is willing to accept custody, and any history of refusing parenting time that was not based on substantiated abuse
- How the child gets on with each parent and with brothers and sisters
- Any history of domestic violence, and the safety of the child and of either parent from physical abuse by the other
- What the child wants, where the child is old enough and able to reason well enough to form an intelligent view
- The needs of the child
- How stable a home each parent can offer
- The quality of the child's education and keeping it going
- The fitness of each parent
- How close the two homes are to each other
- How much time, and what quality of time, each parent spent with the child before and after the separation
- Each parent's work responsibilities
- The age of the children and how many there are
Can the child choose
Not on their own. A New Jersey court can take account of what a child wants where the child is old enough and mature enough to form a sensible view, and it is one of the statutory factors above. But it is one factor among many, and the judge makes the decision, not the child.
Domestic violence
A history of domestic violence is written into the statute as something the court must weigh, along with the safety of the child and the safety of each parent from the other. It carries real weight, and it can change what custody and parenting time look like.
Changing a custody order later
Where an arrangement is working, New Jersey courts will usually leave it alone. To change it you have to show a substantial change in circumstances, such as a major relocation, a major change in a parent's job or hours, or a major change in a parent's behavior that is bad for the child.
It can be done by consent order, which is the easiest route, or by filing a motion. There is more on this on our Modification Orders page.