FAQ – Custody / Visitation
Please review some commonly asked questions and my responses. To submit your own question and get a response, please click here.
What is the difference between legal custody physical custody?
Legal custody is the right to make major decisions in the child’s life effecting the child’s health, education, welfare, and religion. In most cases, both parents will share joint legal custody, meaning that they both get to make these major decisions together. Physical custody refers to where the child’s residence is. The parent having physical custody will make the day-to-day decisions for the child.
What types of custody are there?
There are two main types of custody – legal and physical. Legal custody is the right to make major decisions in the child’s life effecting the child’s health, education, welfare, and religion. In most cases, both parents will share joint legal custody, meaning that they both get to make these major decisions together. If one parent has sole legal custody, however, they are able to make all decisions for the child without consulting with the other parent.
In terms of physical custody, there are many different forms. Sole physical custody means that one parent is the child’s residence and the other parent may have parenting time (visitation). Shared legal custody means the child resides primarily with one parent, but the other parent has the average of 2 overnights per week; one parent will be designated the parent of primary residence and the other parent the parent of secondary or alternate residence.
How do I get custody or parenting time (visitation)?
If you were never married to the other party, you will make an application to the court for custody or visitation in the county in which the child resides. You will set forth what you want the court to order and the reasons why.
If you are married and are in the process of divorce, your application for custody and parenting time will be part of the divorce complaint and will be addressed during the divorce proceedings.
Can I change custody or parenting time (visitation)?
It is possible to change custody or the visitation schedule. You can always modify a custody order if it is in the best interests of the children and if there has been a change in circumstances. There are specific legal standards that you have to prove in order to change custody or visitation. These proceedings are complicated and may result in what is called a “plenary hearing.” A plenary hearing is a mini-trial on the issue of custody or visitation where both parties will provide testimony, evidence and argument to support their position. N.J.S.A. 9:2-4 sets forth the criteria the court considers when making a custody decision as follows:
“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. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.”