The process of determining child custody is complicated, and in more acrimonious divorces, custody can serve as a wedge issue. In most cases, both parents want the children to live with them as much as possible. An even split, however, is rarely achievable, and parents must seek a compromise rather than an all-or-nothing arrangement in order for their children’s lives to be minimally disrupted. Remember that your children’s needs and desires are of paramount importance as you navigate your divorce journey, and that an agreement in your favor may not be optimal for them. As you begin to ponder the issue of child custody and how to discuss it with your spouse, bear these facts about custody in mind to prepare for the stormy seas ahead.
Child Support Payments Are Contingent on Child Custody Arrangements.
Child support in New Jersey is determined by child custody, and all other expenses not included in child support payments will depend to some degree on the custody arrangement. Start with the question of where your children will live—with whom and for which days each week, month, or year—and work outward from there.
Compromise Is the Goal—Not Win/Lose.
While it is possible to have a 50/50 physical custody arrangement, you have to think hard about the feasibility of this option; complicating factors include the proximity of both parents’ residences, career obligations, and many others. Generally, in New Jersey there will be one “parent of primary residence”—the “custodial parent”—and one “parent of alternate residence” who is allotted a certain amount of time with the children. There are countless ways to split this time up, accounting for holidays, summers, weekends, weekday dinners, and travel. While you have legitimate desires to be acknowledged in these decisions, it is important here, as with all other decisions directly pertaining to the children, to put their interests first.
Mediation Allows for More Parental Input Than Family Court Does.
If you go to trial, a judge will decide what is best. That means that a judge could be deciding what is best for your children, and you would have to abide by that decision. No one knows your children better than you and your spouse do. That means that the question of child custody is often best suited to mediation. Can you and your spouse work together, with your attorneys, toward decisions that put your children’s interests first? Be prepared to give and take, but do not think of this as bargaining or bartering. Instead, think of it as planning together toward a common goal: the upbringing of your children after the divorce. In some situations, such as where domestic abuse is involved, mediation may not be the best course. But in any case, you want an attorney whom you can trust rather than a judge to help guide you and your children through the process of deciding child custody.
A Judge Will Still Follow Protocols in Making a Custody Decision.
If left up to the courts, a judge will consider the following factors in deciding child custody:
– The parents’ willingness to accept custody
– The needs of the child
– The fitness of the parents – their ability to parent
– The stability of each home environment
– The parents’ ability to communicate and work together in matters relating to the child
– Any history of unwillingness to allow visitation (except in cases of abuse)
– Any history of domestic violence
– The child’s safety and the safety of one parent from physical abuse by the other parent.
– The child’s preference, if the child is old enough to make an intelligent decision
– The interactions and relationship of the child with his or her parents and siblings
– The child’s educational needs (and the value of continuity)
– The proximity of the parents’ homes
– The extent and quality of each parent’s time spent with child before and after the separation
– The parents’ employment responsibilities and how this might affect their ability to parent
– The ages and number of children
Custody Decisions Can Be Uncomfortable, Even When They Are Made Amicably.
It is important to remember that parenting time after a divorce is a fluid thing; there will be inevitable interruptions to the schedule, and the children themselves will dictate changes as their interests, needs, and desires evolve over time. In as much detail as possible, though, you and your attorney should try to account for holidays, birthdays, vacations, and other special events in the settlement. Divorces disrupt family traditions established over years. You want to keep that tradition, but you have to share it with your former spouse. There are many creative ways to reach an agreement on how to share the holidays. Some are easier, such as Mother’s Day, but what about Christmas, Hanukkah, or New Year’s Eve? How will both parents get to share in the experience of their children’s birthdays?
Traveling Overseas Can Create Some Challenges.
When one parent decides to take children on a trip abroad after a divorce, this often leads to conflict, stress, and re-litigation. It is best to anticipate this issue and come to an agreement in mediation. Can you anticipate reasons for the children traveling abroad, such as family members in other countries? Is there a fear that one parent might flee the court’s jurisdiction with the children? If you feel this way, you should notify your attorney at the start of the divorce process, so your attorney can inform the judge at the proper time.
Moving Across a State or to Another State Is an Even More Delicate Matter.
Relocating with minor outside New Jersey is one of the most difficult legal battles a divorced person, or a person seeking divorce, can face. The court considers many factors in response to a request to relocate outside of the jurisdiction, including the child’s ties to the community, any extended family members who live in New Jersey, and how this move will impact the non-moving parent’s custody and parenting time plan. One spouse wanting to move to Brooklyn from northern New Jersey is almost a non-event. Although a court order is required, the process is much less difficult than it would be if the contemplated move were from New Jersey to Los Angeles, for instance. Getting a court order that allows you to move is a time-consuming process and, if you are even contemplating such a move, you should begin discussion with your attorney early on.
No one should have to endure divorce proceedings alone, and matters such as child custody may seem daunting or even impossible to broach with your spouse. Guidance from a family and marital law attorney will be invaluable as you begin to have conversations about custody, and it is only through strong representation that you will be able to effectively advocate for your desires regarding your children’s living situations. Once you have made the choice to file for divorce, our office can help you to truly begin your journey and sail through child custody negotiations.