Arons and Solomon | August 28, 2018 | Articles
Today’s family doesn’t necessarily fit the cookie-cutter image of a traditional marriage: man and woman meet, get married, buy a house with a white picket fence, have 2.5 kids, a dog, etc.
Modern life is more diverse and beautiful. It is also more complicated when it comes to the law. Parenthood is no longer necessarily preceded by a wedding, so what happens to the children when two unmarried parents break up?
Unwed parents address custody, parenting time, and child support issues in what is called a “non-dissolution case.” Like divorce, the process begins with one party filing a complaint with the court.
If the parenting issues cannot be resolved in a consent conference (a process for unwed couples similar to mediation but not confidential), the case will appear before a judge. Both parties may have to endure discovery, expert and witness testimony, and custody evaluations during the proceedings.
Ideally, an unmarried couple would already have a cohabitation agreement in place that addresses custody, parenting time, financial support, and division of property. If that is not the case, below are some practical considerations that unwed parties seeking custody or child support in New Jersey need to know.
Custody, Parenting Time, and Visitation
Assuming paternity has been established, custody, parenting time, and visitation are decided like divorce proceedings, according to the “best interest of the child.” This set of criteria refers to the child’s physical, mental, and emotional well-being.
The court assumes that children benefit from having both parents in their lives, unless presented with evidence to the contrary. According to N.J.S.A. 9:2-4, New Jersey courts will consider several factors when determining the “best interest of the child,” including:
- Age and number of children in each home
- Both parents’ ability to agree, communicate and cooperate in matters relating to the child, existing custody arrangement, and/or parenting time
- Extent -and quality- of time spent by both parents with the child before and after separation
- Fitness of both parents
- General proximity of the parents’ homes
- Location of the child’s school
- Preference of the child, if age appropriate
- Preserving healthy sibling and parent-child relationships
- Special needs of the child, if applicable
- Stability of the home environment
- The immediate physical safety of the child (and other parent), along with any history of domestic violence in the household
- Work hours and responsibilities of each parent
- Any other issues the court deems relevant
New Jersey courts will always prioritize the “best interest of the child” over all other factors, including the wishes of both parents and grandparents.
Are Unmarried Fathers at a Disadvantage?
The State of New Jersey does not discriminate based on gender when it comes to custody rulings. Mothers and fathers have equal rights to legal and physical custody under the law.
However, there is one hurdle that unmarried fathers must clear that married fathers don’t have to worry about: establishing paternity.
When parents are married and have a child, it is legally assumed the male spouse is the biological father of the child. When parents are unmarried, paternity must be established before a father can explore his custody options.
Paternity can be established in two ways:
- Signing a Certificate of Parentage (COP) – an unwed father’s name cannot appear on a birth certificate without signing this document first.
- Genetic testing – This can be voluntary, or it can be ordered by a judge.
Once paternity is established, the father has a legal right to seek custody, parenting time, and visitation. It also provides the mother with legal grounds to seek child support payments.
Unmarried parents have a legal responsibility to financially support their children. Once paternity is established, both parties have the legal right to seek child support payments from each other (depending on the financial situation of the couple).
The amount of child support owed is usually determined by the New Jersey Child Support Guidelines. There are many factors that dictate the structure of a child support arrangement:
- The net income of both parents
- Age of the children
- Number of children
- Distribution of overnight parenting time
- Alimony and child support payments from prior marriages
- Earning potential of both parents
- The child’s special needs or uninsured medical requirements, if applicable
Parents can also choose to create an alternative plan that better meets the needs of the child using the help of legal counsel.
Can I Move Out-of-State?
A parent and child should not move out-of-state without obtaining one of the following:
- The consent of the other parent
- A court order permitting the parental relocation
To obtain a court order, the parent must file a motion with the court. If the court cannot decide the motion due to conflicting certifications by the parties, it will schedule a plenary hearing where both parties can submit evidence demonstrating the move would be in or against the “best interest of the child.”
The judge will consider whether the intentions of the move are pure, and how it will impact the non-custodial parent’s relationship with the child. If the non-custodial parent does not currently spend his or her allotted parenting time with the child, this could work in the favor of the parent looking to relocate.
Parents should always consult an experienced New Jersey family lawyer before making any significant moves. In extreme cases, disobeying an existing custody order can be considered parental kidnapping and cost thousands of dollars in legal fees and damages, cause emotional harm to the child, and land the parent in jail.
Hire a New Jersey Family Lawyer
The family lawyers at Arons & Solomon believe loving and supportive parents should be closely involved in their children’s daily lives. We also work to protect children from dangerous environments of domestic violence, substance abuse, and neglect.
If you are unmarried and dealing with custody, child support, or parental relocation issues in New Jersey, we can help. Contact us today for a free consultation.