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Child Custody and Relocation


Child Custody

A judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances, and it is the party seeking a modification who bears the burden of proof.  Sheehan v. Sheehan, N.J. Super. 276, 287 (App. Div. 1958). 

The primary standard by which a court can reevaluate custody and order modification is if it is in the best interests of the child.  Sacharow v. Sacharow, 177 N.J. 62, 80 (2003).  Under this standard, the court must focus on the safety, happiness, physical, mental and moral welfare of the child.  Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). 

A judge faced with a very difficult decision in custody disputes has several factors outlined in N.J.S.A. 9:2-4(c) as guideposts in making such a determination.  A few of the most important factors include the following:

  1. the parent’s ability to agree and communicate regarding matters relating to the child;
  2. the parents’ willingness to accept custody;
  3. the parent-child relationship and interactions;
  4. the stability of the home environment offered; and
  5. the needs of the child.            

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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