At the Law Offices of Brian D. Iton, we know that determining who gets custody of the children during separation or divorce can be an intensely emotional decision, and we are committed to serving our clients’ needs through honest and open dialogue and feedback.

Custody is the legal responsibility for the care and control of your unemancipated children (generally children under 18, or over 18 and in college). The court’s goal is to achieve a custody arrangement that meets the best interests of the children. Custody decisions include where the children will reside day-to-day, where they will spend the holidays, and who will have parenting time during summer vacations.

If the parents cannot agree on a custody and visitation plan, the court will decide who gets custody. The court’s decision will be based on what is in the “best interests” of the children. The court considers a variety of factors in making its “best interests” determination, including which home will best serve the child’s educational needs and interests. Contrary to what you may have heard, there is no legal presumption that one gender is better suited to have custody.

In New Jersey, there are two types of child custody:

Legal – Legal custody gives one or both parents the right to make legal decisions for the children regarding education, health care, religion and his or her general welfare. Sole legal custody is when only one parent can make these decisions. Joint legal custody awards that right to both parents.

Residential – Residential custody is where the children reside. Normally one parent is designated the PPR (parent of primary residence), and the other parent is designated the PAR (parent of alternate residence). In New Jersey the parent of alternate residence (PAR) is awarded “parenting time” or visitation with the children.

Mediation and Custody:

There are a number of steps before you end up in a custody trial: New Jersey Court Rule 1:40-5 states that if there is a “genuine and substantial” issue regarding custody or parenting time that the parties have to be referred to mediation. The Rule is set out below:

1:40-5. Mediation in Family Part Matters

(a) Mediation of Custody and Parenting Time Actions

(1) Screening and Referral.

All complaints or motions involving a custody or parenting time issue shall be screened to determine whether the issue is genuine and substantial, and if such a determination is made, the matter shall be referred to mediation for resolution in the child's best interests. However, no matter shall be referred to mediation if there is in effect a preliminary or final order of domestic violence entered pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.). In matters involving domestic violence in which no order has been entered or in cases involving child abuse or sexual abuse, the custody or parenting time issues shall be referred to mediation provided that the issues of domestic violence, child abuse or sexual abuse shall not be mediated in the custody mediation process. The mediator or either party may petition the court for removal of the case from mediation based upon a determination of good cause.

(2) Conduct of Mediation.

In addition to the general requirements of Rule 1:40-4, the parties shall be required to attend a mediation orientation program and may be required to attend an initial mediation session. Mediation sessions shall be closed to the public. The mediator and the parties should consider whether it is appropriate to involve the child in the mediation process. The mediator or either party may terminate a mediation session in accordance with the provisions of Rule 1:40-4(f).

(3) Mediator Not to Act as Evaluator.

The mediator may not subsequently act as an evaluator for any court-ordered report nor make any recommendation to the court respecting custody and parenting time.

If mediation is unsuccessful, the court can do a number of things depending on the circumstances. A custody and parenting/time evaluation can be ordered; a psychiatric or psychological report can be ordered; a social investigation or home inspection report can be ordered; in appropriate circumstances a risk assessment may be ordered. All of these reports/evaluations will include the evaluator’s recommendations.

Before you get started “seeking custody”, contact us at 866-912-2125, (201) 541-6477, or through our online form. We will review your case and give you a realistic sense of your rights, options, and estimated costs in terms of time and money.