Relief Available for People With Children

Relief Available for People With Children

If you have children, you will probably need to ask for additional relief in your divorce complaint concerning custody of the children, parenting time/visitation, and child support.

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Custody. If you and your spouse do not agree about child custody, the judge will have to decide this in the divorce case. The judge must decide what custody arrangement is in the child’s best interests. If you have serious concerns about who will get custody, you should talk to a lawyer.

There are two aspects of custody: legal custody and physical custody. The parent with primary legal custody is responsible for making important decisions concerning the child, such as where the child should go to school and what kind of medical care the child should get. The parent with primary physical custody is the parent the child lives with most of the time. This parent is called the custodial parent, and the other parent is called the non-custodial parent. Parents can also share custody jointly.

• Joint physical custody (also called shared physical custody). The child lives with each parent for similar amounts of time during the year. In this situation, both parents have day-to-day responsibility for the child.
• Primary physical custody. The child lives most of the time with one parent. The other parent may visit the child.
• Joint legal custody. Both parents are involved in making important decisions concerning the child’s education, medical care, and similar issues. Both have access to the child’s school and medical records.
• Primary legal custody. Only one parent is responsible for making important decisions concerning the child.

Custody arrangements can vary greatly, depending upon the needs of the children and the relationship of the parents. The court does not have to give both parents physical and legal custody. Often the parties have joint legal custody, but one party has primary physical custody. In some very rare situations, one parent will get legal and physical custody. This parent is said to have sole custody. Sole custody is ordered only where one parent is missing, absent, or found to be legally “unfit.”

Custody decisions are based on the child’s best interests. The court will look at a number of factors, including:

• The parents’ ability to agree, communicate, and cooperate.
• The child’s relationship with the parents and siblings.
• Any history of domestic violence.
• The child’s safety, needs, and preference.
• Each parent’s ability to take care of the child.
• The child’s education.
• The amount of time each parent has spent with the child.
• The parents’ employment responsibilities.
• The ages and number of children.
• Any other factors the court finds relevant.

Decisions involving custody can be changed by the court if the parties’ or children’s circumstances change.

Other issues around custody include the following:

• Parent education. In every divorce action where custody, visitation, or support of a minor child or children is an issue, the court will order the parents to attend a Parents’ Education Program to be offered twice a month through the court. There is a $25 fee to attend this program, and attendance is mandatory. The program is designed to assist and advise divorcing parents on issues concerning divorce, separation, and custody, to promote cooperation between them and assist them in resolving issues concerning their children that may arise during the divorce or separation process. The court may exempt a party from attending this program if a temporary or final restraining order, restraining either party from contact with the other, has been issued or for other good cause determined by the court.
• Custody mediation. When there is a dispute about custody or parenting time, the court will usually refer the parties to mediation to see if a court mediator can help resolve the issue. If a temporary or final domestic violence restraining order has been entered against you or your spouse, you cannot be required to participate in mediation. Likewise, if there are issues of child abuse or sexual abuse, the case will not be mediated. If circumstances require it, even after mediation has begun, the mediator or either party can petition the court for permission to remove the case from mediation by demonstrating good cause for removal. If an agreement is reached, it is memorialized in writing and a copy is given to each party. If an agreement is not reached, the case goes back to the court to be settled by way of a trial or hearing.
• Court investigations. The court can ask the probation division or other court staff to conduct an investigation of the parties and their homes and file a report with the court. This is sometimes referred to as a best interests investigation.
• Parenting plans. Unless you and your spouse agree about custody, you will both have to file aCustody and Parenting Time/Visitation Plan (Form 22) with the court within 75 days of the date the defendant answers the complaint. If the defendant files a counterclaim, you will need to file your plan within 75 days of filing your answer to the counter-claim. (See Custody and Parenting Time/Visitation Plan.) source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep