Arons & Solomon, P.A.

Custody Rights for LGBTQ Divorce in New Jersey

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In 2015, the U.S. Supreme Court ruled that all Americans, regardless of gender or sexual orientation, have the constitutional right to marry the person they love. If things don’t work out, they also have the right to pursue a divorce.

All couples face the same issues during a divorce, including: division of assets and debts, alimony, child custody, child support, and visitation.
However, custody gets complicated when it involves adoption and/or assisted reproduction. If you are pursuing an LGBTQ divorce and have concerns about your parental rights, we can help.

If One Party Entered the Marriage with a Child

In the State of New Jersey, a child can only have two legal parents. If your partner has a child from a previous relationship or marriage, you may find yourself taking on the roles and responsibilities of a parental figure.

However, you are not a legal parent without the paperwork to prove it.
In extreme cases, the other legal parent might be deemed “unfit” due to child abuse or neglect. They might be deceased, or consent to surrendering parental rights due to some other reason. In all these instances, a step-parent may pursue adoption.

If your partner files for divorce before you complete a step-parent adoption: you still have a fighting chance for custody and visitation if the court believes it would serve the “best interest of the child.”


In 2014, the appellate division of the Superior Court of New Jersey heard K.A.F. v. D.L.M., a case involving a female same-sex couple with a domestic partnership. One partner (K.A.F.) was the biological mother and carrier of the child, though both K.A.F. and D.L.M. had cohabitated and shared parental responsibilities since the child was under 2 years of age. (The child was 12 years of age at the time of the court argument.)

The child’s other legal parent was still in the picture, was fit to parent, had formally adopted the child, and was listed on the child’s birth certificate. Even so, the court determined that D.L.M. (a third party) had a legal right to pursue custody and visitation on the grounds that she had developed a “psychological parenting” bond with the child. To sever that relationship might cause emotional harm to the child.

If this scenario feels familiar, you’ll want to obtain skilled and experienced legal counsel as soon as possible.

If Both Parties Adopted the Child Together

If both partners legally adopted the child together, and are both deemed “fit” to parent, they are entitled to the same custody and visitation rights as any other parents.

In order to finalize a divorce in New Jersey, a couple must agree upon and sign a Parenting Plan that establishes the schedule, living arrangements and major decision-making processes surrounding the co-parenting of the child.
If they cannot reach an agreement independently, the court will have to establish one for them.

If Both Parties Had a Child Using Assisted Reproduction

If both parties agree to have a child using assisted reproduction (sperm donation, egg donation, embryo donation, etc.), the nonbiological parent must take extra legal precautions to establish the same parental rights automatically awarded to the biological parent.

Though married spouses are generally presumed to be the legal parents of a child, New Jersey allows for “second parent adoption” to establish joint parental rights. A family lawyer can help you determine if second parent adoption is necessary to protect your relationship with your child.

Fertility law is an incredibly complicated area within family law. Parental rights can vary greatly depending on the specific details of the case. If you are concerned about your parental rights, seek legal counsel right away.

Hire an LGBTQ Divorce and Custody Lawyer in New Jersey

Each lawyer at Arons & Solomon holds more than 20 years of experience in family law. We are on the cutting edge of developing LGBTQ case law and maintain a professional atmosphere that welcomes people from all walks of life.

We do not discriminate based on race, color, national or ethnic origin, age, religion, disability, sex, sexual orientation, gender identity and expression, or any other characteristic or lifestyle.

If you are pursuing custody in an LGBTQ divorce, we can help.
 

5 Helpful Apps and Software for Divorced Parents

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Life goes on after a divorce is finalized. While some couples part ways and never speak again, parents must find a way to coexist peacefully in the best interests of their children.

We get it. Communication issues are often a cause for the divorce in the first place. Speaking with an ex-spouse can be tense, and sometimes downright painful. For most divorced couples, less interaction is more.

The best way to avoid conflict is to stay organized. Having a structured routine keeps co-parents on the same page without sending hundreds of messages back and forth. Below are 5 apps that help divorced parents facilitate information-sharing without the drama.

1) Our Family Wizard

Our Family Wizard is a one-stop-shop for successful co-parenting. It provides a shared calendar of custody, visitation, and all other appointments and activities. It specifies the pickup and drop-off parent for each calendar item. Schedule change requests can be asked and answered with a time-stamped record of the exchange.

A secure message platform allows parents to send notes with attachments and prohibits any exchanges from being altered or deleted. This provides an accurate (and time-stamped) record of conversation that can be provided to the courts in the event of a future conflict.

The expense log allows both parents to submit expenses with receipt photos attached. They can request and receive documented reimbursements from linked PayPal and checking accounts.

Important resources can be shared in the “Info Bank,” which provides a secure location for medical and insurance information, emergency contacts, personal records, clothing sizes, allergy information, and more. Parents can also create private or shared journal entries to keep a time-stamped record of important events, exchanges, and incidents.

2) Talking Parents

Talking Parents allows parents to communicate on a secure platform that cannot be altered or edited. This provides an accurate (and time-stamped) record of conversation that can be provided to the courts in the event of a future conflict. Knowing the conversation is “on the record” holds both parties accountable to their words and tends to keep exchanges respectful and constructive.

The messaging platform allows you to upload file attachments, which is a great way to share medical records, school documents, and other important information. The program also features a shared calendar of custody, visitation, extracurricular activities, school calendars, medical appointments, and other important dates in your children’s lives.

3) Custody X Change

Custody X Change provides basic software for one parent to create a parenting plan, a custody schedule, track expenses, and keep a time-stamped journal. It tracks parenting time, so you can compare your actual parenting time to what was agreed upon.

Reports and calendars are printable, which means you can bring them to appointments with your divorce lawyer and have organized records for court appearances or upcoming negotiations. You can give copies of the calendar to the other parent, but the software itself is not meant to be shared.

4) 2houses

2Houses provides a shared calendar of the custody and visitation schedule and any other important activities and appointments. A parent can submit a schedule-change request in the app, and the other parent can approve, deny, or request an alternate date. The calendar can also be shared with third parties, including family members or caretakers.

The program tracks expenses by category, with a running balance of who owes what. A secure messaging feature ensures all conversations happen in the same place and cannot be deleted. The information bank allows co-parents to store contact, medical, and other important records in a single, convenient location.

5) Coparently

Coparently provides a shared custody calendar, expense tracking, and messaging platform. The expense tracking feature allows users to assign a “percent contribution” to each parent that can automatically calculate how much is owed by each party.

The platform includes a shared directory of contacts for easy access to medical and caregiver information, and allows for “guest access,” which can include family members, caregivers, and lawyers.

Always Consult a Divorce Lawyer to Create a Custody Schedule

These apps are valuable tools to assist you in the daily execution of your divorce decree, but they are no substitute for legal counsel. Always consult an experienced family lawyer to make sure your divorce and custody arrangements protect your best interests.

Arons & Solomon has decades of experience helping New Jersey and New York families transition into a post-divorce lifestyle that minimizes conflict and preserves emotional health.

Can My Ex Take the Kids for the Holidays Without My Permission?

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The answer depends on where you are in the divorce process.

If You Are Divorced

The State of New Jersey will not finalize a divorce without a court-approved Parenting Plan in place. A Parenting Plan is a legal document that establishes the schedule, living arrangements, and major decision-making processes surrounding the co-parenting of a child. These typically include a holiday visitation schedule.

A holiday visitation schedule outlines where the children will go for all major holidays, birthdays, and school breaks. It also takes precedent over the day-to-day routine of the main custody arrangement.

For example: If dad normally has the children on weekends, but Christmas falls on a Saturday and the holiday schedule says Christmas is with mom this year, then mom gets the children on that day.

A Parenting Plan and holiday visitation schedule protect the rights of each parent and create stability for children in their new family dynamic. When a custody dispute arises, the plan provides the structure necessary to keep both parents on the same page.

At best, it’s considered contempt of court if a parent knowingly violates the terms of a Parenting Plan or holiday visitation schedule. At worst, it can be considered parental kidnapping. If the violating parent leaves the state or country with the children, they could face federal charges.

A family lawyer can help you file a motion with the court to enforce the Parenting Plan and include the assistance of law enforcement, if necessary. You have the right to file an incident report or a criminal complaint for visitation order violations N.J.S.A. 2C:13-4(a), although local law enforcement may encourage you to take it up with family court instead.
According to NJ Rule 5:3-7(a), the New Jersey Superior Court may order the following if a parent knowingly violates a custody or parenting time order:

  1. Compensatory time with the children
  2. Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent
  3. Modification of transportation arrangements
  4. Pick-up and return of the children in a public place
  5. Counseling for the children or parents or any of them at the expense of the parent in violation of the order
  6. Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children
  7. Participation by the parent in violation of the order in an approved community service program
  8. Incarceration, with or without work release
  9. Issuance of a warrant to be executed upon the further violation of the judgment or order
  10. Any other appropriate equitable remedy

If you suspect your ex-spouse may intentionally defy your custody order, a family lawyer can help you file an emergent application for custody with the court. If your application is granted, make sure all daycare and school employees are aware of the situation and prepared to enforce the custody order.

If You are Separated

If you are just beginning the divorce process, you probably haven’t had the opportunity to put a Parenting Plan in place. If you are concerned your spouse will take the children away from you for the holiday season, you have options.

A parent can file for a temporary custody order to establish a day-to-day schedule for the duration of the separation until the divorce is finalized. This schedule is determined using the “best interest of the child” criteria established by the courts.

If You Were Never Married

All parents have custody rights, regardless of whether they are married. Unmarried parents are not legally obligated to create a custody agreement after a breakup unless the court gets involved, but they have the right to do so at any time.

Your custody schedule should never be agreed to by a verbal commitment. Parenting Plans and holiday visitation agreements should always be in writing, signed, and enforced by court order.

Hire a New Jersey Divorce Attorney

The holidays can be stressful enough without worrying about custody battles. Always confirm holiday logistics in advance. If you are worried your ex-spouse may attempt to dispute the custody order during the holidays, keep a copy of your Parenting Plan handy.

For a free consultation on Parenting Plans and holiday schedules in Bergen County and Morris County, contact the NJ family lawyers at Arons & Solomon.

A Guide to Holiday Custody for Unmarried Parents in New Jersey

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Unmarried parents have the same custody rights as married parents in New Jersey. However, unmarried parents face several custody challenges that married peers do not encounter during a breakup. One of the most significant among them is proving paternity.

Figuring out the family holiday schedule can also be a major headache for unmarried parents without a holiday custody and visitation schedule in place.

Married parents are legally obligated to agree upon and sign a Parenting Plan before a divorce is finalized in New Jersey. The holiday visitation schedule is typically incorporated into that plan.

Unmarried parents are not legally obligated to create a custody agreement after a breakup unless the court gets involved- and it often does. Uncertainty surrounding the family schedule is a breeding ground for future conflict.

Creating a holiday custody schedule keeps both parents on the same page and allows children to emotionally prepare for the holiday season. With the stability of a plan, you can finally start making new traditions and cherished memories.

Below are some practical tips for unmarried parents looking to make a holiday visitation schedule in New Jersey.

An Overview of Custody for Unmarried Parents in New Jersey  

Once paternity is established, unmarried parents address custody and child support issues in a non-dissolution case. Like divorce, this process begins with one party filing a complaint with the court.

If parenting issues cannot be resolved in mediation or a consent conference (a process for unwed couples like mediation but not confidential), the case will appear in court before a judge. Both parties may have to endure discovery, expert and witness testimony, and custody evaluations during the proceedings.

All custody and visitation issues will be decided according to the “best interest of the child.” The court will assume children benefit from having both parents in their lives, unless presented with evidence to the contrary. Both parties will likely be required to submit a custody plan for the court’s consideration before making a ruling.

Custody disputes can be the most emotional and contentious area of family law. We highly recommend you seek the advice of an experienced New Jersey family law attorney to guide you through this process.

How to Create a Holiday Visitation Schedule

A holiday visitation schedule is a plan that outlines where the children will go for all major holidays, birthdays, and school breaks. It is separate from the main custody arrangement.

Typically, parenting plans will have a “rotating holiday schedule,” which means each holiday alternates annually between parents.

For example: children spend Thanksgiving with Dad during the even years, and with Mom during the odd years.

Other options include: sharing time on a holiday, scheduling alternative dates for the “off-year” parent to celebrate a holiday, spending the holidays together, or splitting up the holidays accompanying a long weekend.

For example: the children spend Thanksgiving Day with Mom, but spend the following long weekend (Friday, Saturday, and Sunday) with Dad.

Some holidays are more meaningful to one parent than another. For this reason, a combination of different time-sharing approaches may work best in your schedule.

The more specific the holiday schedule, the better. Plans should include pickup and drop-off times to minimize arguments over transportation and timing.

Factors to Consider When Making a Holiday Custody Schedule

  • Can any of the children’s holiday traditions be preserved?
  • Should you alternate holidays each year, or divide time within the holiday?
  • What are the travel considerations, both in-state and out-of-state?
  • Does the schedule prioritize the wishes of the parents, or the needs of the children?
  • How will the plan work in practice? (Ex. splitting a holiday in half may leave children sitting in traffic on Christmas)

Beware of Verbal Holiday Custody Agreements

Never take someone’s word for it when it comes to child custody, even if your co-parenting relationship is cordial. Holiday visitation agreements should always be in writing, signed, and made legally binding by the court.

Hire a New Jersey Divorce and Family Law Attorney 

A holiday custody schedule brings stability to a new family dynamic and helps children return to a sense of normalcy.

Holidays will never be exactly how they were, but having a plan reduces conflict during this already emotional season. When co-parents reach a disagreement, they will have the structure of the agreement to guide their behavior. It saves both parties time, money, and emotional stress.

If you are an unmarried parent looking to create or modify a holiday visitation schedule in Bergen County or Morris County, the lawyers at Arons & Solomon, P.A. can help. Contact us for a free consultation.

How Parental Relocation Affects Custody in New Jersey

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Life goes on after a divorce, and sometimes it requires the custodial parent to relocate to another town or state. Maybe the parent found a new job or decided to move in with a new partner. Whatever the reason, parental relocation can have a big impact on your custody arrangement.

Moving Within New Jersey  

Relocations within New Jersey are usually negotiated and settled between both parties or approved by the court. If the distance of the new home is far enough to prevent the family from following the parenting plan, it may require either consent from both parents, or a court order.

Moving Out of New Jersey

Moving children out-of-state always requires either consent from both parents, or a court order. There is no way around this requirement. If the child is old enough to consent or object to the move, the court will also consider the will of the child.

According to NJ Rev Stat § 9:2-2 (2013):

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.

If both parents approve of the move, the noncustodial parent will have to sign a consent order. If one parent objects to the move, the custodial parent will have to file a motion for a plenary hearing, and the case will be taken to court.

If possible, co-parents can negotiate an arrangement outside of court. This alternative approach can save both parties a lot of time, stress, and money.

Parental Relocation Laws Have Changed in New Jersey

In 2017, the New Jersey Supreme Court reversed nearly 20 years of case law regarding parental relocation. The case, Bisbing v. Bisbing, involved a father trying to stop his ex-wife from moving to Utah with their two daughters. The couple had been divorced for a year and the ex-wife had primary custody.

Before Bisbing v. Bisbing, the courts required the custodial parent to demonstrate two things:

  • The move was being made in “good faith”
  • The move will not harm the child

The courts also required the custodial parent to propose a plan allowing children regular visitation and contact with the other parent in the event of a move.

In the Bisbing v. Bisbing case, the New Jersey Supreme Court decided these criteria were not enough. The justices ruled the custodial parent must go a step further to provide evidence the relocation would be in the “best interest of the child.”

This decision made waves in the family law community because it shifted the burden of proof to the parent seeking the move. New Jersey courts now operate under the assumption that children benefit from both parents playing an active role in their lives. What does this mean for parents?
It is no longer primarily up to the noncustodial parent to provide evidence that a move would harm the child. The burden is now on the parent seeking relocation to demonstrate the move would meet the legal definition of the “best interest of the child.” (These criteria can be found here.)

Relocation When Parents Share Joint Legal and Physical Custody

When co-parents have joint legal and physical custody, they share:

  • equal decision-making authority
  • equal division of parental responsibility
  • equal parenting time

Because everything is split down the middle, a relocation away from one parent would have a profound impact on the children’s daily lives.

Unless both parents plan to move, the court is forced to consider a modification to the custody arrangement itself. This would require a courtroom hearing that allows both sides to present evidence and testimony supporting why they should be granted primary physical custody.

Can I Relocate the Children Without My Ex’s Permission?

If you moved your child across state lines without getting a court order or written consent from the other parent, you have a big problem on your hands. This can be considered “parental kidnapping” and may result in loss of custody, thousands of dollars in legal fees and damages, and possible jail time. Always follow the law and seek legal counsel before making any major custody decisions.

Hire a New Jersey Divorce Lawyer

If you are looking to initiate or stop a parental relocation, the New Jersey custody lawyers at Arons & Solomon will create a legal strategy that protects your children. Contact us today for a free consultation.

Unmarried Custody Rights in New Jersey

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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.

Child Support

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.

What to Expect When New Jersey Family Court Orders a Custody Evaluation

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When parents get divorced, they must create a Parenting Plan (aka. “custody arrangement”) that establishes the schedule, living arrangements, and major decision-making processes surrounding the co-parenting of a child.

Spouses have the option to create this document together outside of court. However, if they cannot agree on the custody arrangement, the New Jersey family courts will step in to make the decisions for them.

Every case is different, so the process to create a custody arrangement will vary. However, below is a general overview of what to expect if your New Jersey custody case is heading to court.

Custody Court Decisions Are Subjective

Unlike child support, there is no set formula to calculate custody responsibilities and visitation schedules. Each judge will weigh the individual criteria differently within the general framework of the “best interest of the child.”

The best interest of the child is not just an expression, it has a legal definition with a set of criteria explicitly outlined in New Jersey family law. There is no telling what criteria will be prioritized over the others.

In some ways, this part of the process can be a roll of the dice depending on which judge you get. For this reason, it is important to hire an established divorce attorney who is familiar with the judges in your jurisdiction.

(Learn more about the factors determining the “best interest of the child” here.)

Custody Court Decisions Rely Heavily on Expert Testimony

According to New Jersey Rule 5:8-1, a court-ordered custody investigation (aka. “expert report”) may be required if mediation fails or the parties are unable to make a plan on their own. The findings of this investigation are taken very seriously by the courts when making a custody determination.

Part of this investigation can include an expert report conducted by a licensed mental health professional with a specialty in custody evaluation. It includes a detailed written evaluation of both parties and the children, along with the expert’s recommendation on the custody arrangement and visitation schedule.

Custody evaluations can usually take anywhere from 2 to 6 months, on average. The duration of the process will depend on many factors, including: the evaluator, the availability of both parties, and the complexity of the case.

Both parties can use the same custody expert, the court can appoint one, or each of the parties can retain their own. Hiring two experts may increase the probability of a case going to trial and is usually a waste of resources, considering the reports are supposed to be objective.

The custody expert will meet with the parents and children, along with any other relevant individuals outside of the immediate family. This can include teachers, coaches, family friends, neighbors, extended family, and more.

The interview questions will explore the personality of both parents, and the quality of their relationships with the child. They will also evaluate the specific needs and behaviors of the child, and both parents’ abilities to meet those needs without conflict.

The expert’s recommendations will always be made in the “best interest of the child.”

Hire a Hackensack Divorce Lawyer

Whether you are planning to create a custody arrangement through negotiation, or taking the issue to court, the divorce attorneys at Arons & Solomon can help.

 

What Constitutes the “Best Interest of the Child” in New Jersey?

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If you do a quick Google search for information on child custody and visitation, you will find post after post referring to the “best interest of the child.”

The phrase is mentioned all the time in divorce law, but what does it mean?

A Quick Overview on Custody

When separated parents cannot agree on a custody and visitation agreement (aka. a “Parenting Plan”) the courts must make the decisions for them.

Unlike child support, there is no set formula to calculate custody responsibilities and visitation schedules. Each judge will weigh the individual criteria differently within the general framework of the “best interest of the child.” The decision can be incredibly subjective.

Courts also rely heavily on custody experts when determining custody, which can require an evaluation of both parties, and the children.

For these reasons, it’s always better for separated spouses to create a Parenting Plan together outside of court, if possible. Not only will this less intrusive approach give both parties more control over the process, it also begins the journey of co-parenting from a place of communication and mutual understanding.

A Child’s Best Interest, Defined

The “best interest” of the child refers to his/her physical, mental, and emotional well-being. Unless proven otherwise, it is assumed by the court that children benefit from having both parents play an active role in their lives.

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.

Seek Counsel from a New Jersey Divorce Lawyer for Custody Disputes

It’s critically important to seek the advice of a New Jersey divorce attorney for all custody disputes and parenting plan modifications. Nobody should be “winging it” when it comes to protecting legal access to their children.

The custody lawyers at Arons & Solomon understand the stakes could not be higher. We work with clients in the Bergen County and Morris County areas to make sure loving and supportive parents stay closely involved in their children’s daily lives.

Our team also works to protect children from dangerous environments of domestic violence, substance abuse, and neglect.

If you need to create a Parenting Plan, or update an existing plan, we can help.

 

Does New Jersey Have “Parental Kidnapping” Laws?

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The short answer: Yes.

The long answer: When a parent does not believe a custody order is fair, they will sometimes -unwisely- defy the order and take matters into their own hands. Do not attempt this. Best case scenario, ignoring the terms of a custody order can lead to “contempt of court” charges. Worst case scenario, it can be considered “parental kidnapping.”

Custody orders are not suggestions, they are laws enforced by the courts. In the eyes of the State of New Jersey, anyone deliberately interfering with a custody arrangement is committing a crime.

Concealing a minor child from his/her parent will likely cost you thousands of dollars in legal fees and damages, cause emotional harm to the child, and land you in jail.

According to N.J.S.A. 2C:13-4, a person is guilty of interference with custody if they:

  1. Detain a minor child with the purpose of concealing the child, thereby depriving the other parent of custody/parenting time
  2. Detain or conceal a minor child to evade the jurisdiction of NJ Courts in anticipation of a legal order that will affect their custody, or the protective services needs of the child
  3. Detain or conceal a minor child in violation of a court-issued custody/parenting time order

To qualify under these criteria, the child must be detained for more than 24 hours. There is no statute of limitations for these violations.

Parental Kidnapping Can Be a Federal Crime

The International Parental Kidnapping Crime Act (IPKCA) makes it a federal crime to leave the country with a child under the age of 16 with intent to deprive a parent of custody/parenting time. State and local law enforcement may also request assistance from the FBI to locate and return the child, which brings more serious charges, and more serious legal bills.

If you were thinking about fleeing to a state with more favorable custody laws, think again. The Parental Kidnapping Prevention Act (PKPA) was created in 1980 to give the child’s home state preferred jurisdiction over other states.

Can Parental Kidnapping Be Prevented?

If you suspect your ex-spouse might attempt to defy a custody order, or pre-emptively flee the state or country with your child, you can file an emergent application for custody with the court. If your application is granted, make sure all daycare and school employees are aware of the situation and prepared to enforce the custody order.

Is There Any Excuse for Disobeying a Custody Order?

The offending parent may be able to defend themselves against kidnapping charges in the following circumstances:

  1. If there was an imminent threat of domestic violence or child abuse, and the offending parent contacted the police, county prosecutor, or the New Jersey Division of Child Protection and Permanency (DCPP) to disclose the location of the child within 24 hours
  2. If the offending parent sincerely believed they had the consent of the other parent to deviate from the custody arrangement
  3. If the child is older than 14 years of age and left of his/her own volition

Always Follow the Law and Seek Professional Counsel

If you don’t like your existing custody arrangement, you have the right to challenge it in court. You do not have the right to violate your existing arrangement.

Kidnapping is kidnapping, regardless of the offender’s relationship to the child. Always follow the law and seek legal counsel before making any major custody decisions.

The family lawyers at Arons & Solomon, P.A. hold decades of experience in all areas of New Jersey custody. Contact us for a free initial consultation to protect your child’s best interest, and get the custody results you deserve.

Do Grandparents Have Visitation Rights in New Jersey?

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Divorce holds consequences for the entire family, not just parents and children. It’s normal for grandparents to worry about how a divorce settlement will impact their relationship with their grandchildren.

Fortunately, grandparents have options.

The State of New Jersey has a statute allowing grandparents to request time with their grandchildren by filing a separate suit seeking visitation. The suit should be filed with the Superior Court in the child’s residential county. An attorney specializing in family law can help file the appropriate papers.

The child’s parents will receive a copy of the application, and a notice to appear in court for a hearing. If a visitation schedule is agreed upon, it will become a court order and enforced by law.

According to N.J.S.A. 9:2-7.1:

A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child… With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.

Grandparent visitation rights are case-specific and depend on eight main factors, including:

  • The best interests of the child
  • The grandparent’s relationship with the child
  • The grandparent’s relationship with the custodial and noncustodial parents
  • Any existing time-sharing arrangement between the child’s parents
  • History of physical, emotional or sexual abuse or neglect on the part of the grandparent
  • Time elapsed since the grandparent last had contact with the child
  • The good faith of the grandparent in filing the application
  • Visitation’s potential effect on the relationship between the child and his/her parents

It is important to remember the courts are evaluating the facts of the case through the lens of the “best interests of the child,” not the best interests of the grandparents.

What if the Parents Are Not Divorced?

All issues related to grandparent visitation are considered a separate lawsuit and not considered part of any divorce. Technically, grandparents can apply for visitation rights if the child’s parents are still together, divorced, or were never married.

Legal Decisions Impacting Grandparent Visitation Rights

Decisions in the higher courts have significantly limited the visitation rights of New Jersey grandparents. In 2000, the U.S. Supreme Court case Troxel v. Granville ruled the “best interest of the child” argument was not enough to overrule a parent’s constitutional right to make decisions on how to best raise their children.

In 2003, the New Jersey Supreme Court applied the Troxel decision to the Moriarty v. Bradt case, which ruled that parental choices in New Jersey can only be overridden with proof the child’s health or well-being is at risk. In other words, grandparents must provide solid evidence to the courts that severing the relationship will physically or emotionally harm the child.

This standard is a lot tougher than the “best interest of the child” argument. The U.S. and New Jersey Supreme Courts have made it clear that a dispute between a parent and a grandparent is not a contest between equals. The parent will always have the legal advantage.

Hire a Professional

Loving and supportive grandparents deserve a place in the lives of their grandchildren. If you are a grandparent looking for a legal means to preserve your relationship with your grandchild, don’t suffer through the process alone and uninformed. We’re here to help.

For a free consultation on grandparent visitation rights, contact the New Jersey family law experts at Arons & Solomon.

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