Child Custody and Relocation

Who gets custody of a child in New Jersey?

Child Custody

The paramount consideration in determining child custody is to foster the best interests of the child. Beck v. Beck, 86 N.J. 480 (1981). This standard has been described as one that protects the safety, happiness and physical, mental and moral welfare of the child. Fantony v. Fantony, 21 N.J. 525 (1956). The statute provides for equal access to the child/children by both parents. N.J.S.A. 9:2-4.

Types of Custody

There are various types of custody in New Jersey as set forth in N.J.S.A. 9:2-4.

  • Legal custody - which parent will make the major decisions affecting the children, such as health, welfare, religious training, education;
    • Joint legal custody - both parents will be involved in making all major decisions; or
    • Sole legal custody - one parent will make all major decisions;
  • Physical custody - where the children physically reside;
    • Shared/joint physical custody - the children reside with both parents equally or close to equally; or
    • Parent of primary residence - the children reside primarily with one parent and have parenting time with the other parent; or
    • Sole physical custody - the children reside with only one parent.

There is no presumption in favor of any of the types of custody. Beck v. Beck, 86 N.J. 480 (1981).

Factors

In making an award for custody, the court is to consider the factors set forth in N.J.S.A. 9:2-4, the most important of which are:

  • The needs of the child;
  • The fitness of the parents;
  • The stability of the home environment offered;
  • The parents' ability to agree, communicate and cooperate in matters relating to the child;
  • The history of domestic violence, if any; and
  • The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.

Relocation

During or after a divorce, parents may consider relocating with their children outside of New Jersey. When the parents do not share physical and joint legal custody, the burden is on the relocating parent to establish a good faith motive for the move and that the move will not be inimical to the best interests of the children. Baures v. Lewis, 167 N.J. 91 (2001). When the parents share physical and joint legal custody, the burden is on the relocating parent to prove that it is in the best interests of the children that custody be transferred to that parent. O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002).

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