New Jersey does not have legal separation in the same manner as some other states. However, if you and your spouse no longer wish to live together, but are not prepared to proceed with a divorce, you can certainly live separately. In fact, you can even resolve issues of child custody, child support, and spousal support by filing a non-dissolution, or “FD” case. However, the underlying law with regard to child custody remains the same for both a divorce and FD case.
When dealing with a child custody matter, you need to determine two types of custody: legal and physical. Legal custody deals with who is entitled to make major decisions in your child’s life. These decisions include the child’s health, education, and religion. In most cases, the parties decide to share joint legal custody of the children, which means that both parties are entitled to participate in the decision-making process for the major events in their children’s lives. It is less common for parties to agree to, or for a judge to order, sole legal custody. In this scenario, only one parent is permitted to make the major decisions for the child.
Physical custody of the child is often the more difficult aspect of a custody dispute to resolve. Many years ago, the courts subscribed to the tender years theory which essentially stated that children were better off with their mothers. The New Jersey courts have not utilized this theory in many years and instead evaluate the best interest of the child when reaching a determination in a custody case. This will include the consideration of a number of factors, such as the parties’ ability to work together, the needs of the child, the opinion of the child if they are of a suitable age, and the stability of the home environment with each parent.
Recently the trend has been away from the old standard of alternating weekends and 1 dinner visit per week for dads. More and more couples who are going through a divorce are agreeing to a shared parenting arrangement, which can consist of any arrangement up to and including a 50/50 schedule. Parents are regarded as being on equal footing with regard to parenting time and neither is considered more suited to having primary physical custody based on gender alone.
The Courts encourage parties to resolve their custody matters without court intervention. Parents who are going through a divorce are often sent to custody and parenting time mediation with court staff in order to assist in reaching a resolution that the parties agree on. In the event that parties cannot reach an agreement, the issue will go to trial. The judge hearing the trial will hear testimony from each party as to why that person’s custody proposal should be ordered. If the parties have also retained expert witnesses, they may testify as well.
How do you file for child custody? If you are married and are seeking a divorce, you need to file a complaint for divorce and specifically include what type of custody you are seeking, such as joint legal and primary physical custody. If you and the other parent were never married, or if you are married but are not pursuing a divorce, you need to file a “FD” complaint and make the same request.
If you have questions about child custody issues, call the attorneys at DeTorres & DeGeorge to schedule an appointment at 908–284–6005 or 973–264–4100. Our attorneys can assist in your custody case through either litigation or mediation, as they have done for many others in this situation.