What to Expect in a Child Custody Determination in New Jersey

The Different Types of Custody | How the Court Determines Custody

What to Expect in a Child Custody Determination in New JerseyIn a New Jersey divorce proceeding where minor children are involved, the parties must resolve issues related to custody and visitation. The parties may agree to terms without the intervention of the court, but the court must still enter an order putting the arrangement in place. If the parents cannot agree regarding where children will reside and what parenting time will look like, the court will hold hearings and make the final decision.

The Different Types of Custody

In New Jersey, as is most states, there are two types of custody: physical and legal. Physical custody refers to the child’s primary residence, whereas legal custody addresses the right of the parents to be involved in decisions related to education, medical care, religious training, and other important life issues.

As a general rule, courts prefer joint legal custody, with both parents actively and meaningfully involved in decision-making. Though there has been an increase in joint physical custody, most courts still believe it to be in the best interests of a child to have a principal residence with one parent and visitation with the other.

How Does a Court Determine the Best Interests of the Child?

Courts tend to favor decisions that ensure both parents are involved in the life of the child. Other factors the court considers when making a custody ruling include:

  • Age and gender of the child
  • Physical and mental health of the child
  • Ability of each parent to provide for the child’s financial, physical, and emotional needs
  • Mental and physical health of each parent
  • Emotional bond the child has with each parent
  • Lifestyle and routines to which the child is accustomed
  • Impact on the child of any change in residency
  • Possible allegations of domestic violence or abuse
  • Respective lifestyles of both parents, including alcohol, tobacco and drug use, or inappropriate exposure to sexual matters
  • Preference of the child, if the child has reached a certain age, typically 12 years old

Contact Attorney David M. Lipshutz

We take your case only if we know we can help. For an appointment, contact our office online or call us at 856-627-1990.. We are available to meet with you Monday through Friday, between 9:00 a.m. and 5:00 p.m.

New Jersey Child Custody Determinations

The Types of Custody | Factors the Court Considers

New Jersey Child Custody DeterminationsIn a divorce proceeding where there are minor children in the home, one of the most difficult decisions can be determination of child custody. Where will the child spend most of their time? What will visitation look like?

The Different Types of Child Custody

In New Jersey, as in other states, there are two components to a custody arrangement—physical custody and legal custody.

Physical custody addresses where the child will reside most of the time—what will be considered the child’s “home.” Though the parents can essentially “share” custody, with the child spending half of their time with each parent, it’s more common for the court to grant primary custody to one parent and allow the other visitation rights. The parents may mutually agree to a custody arrangement, subject to the approval of the court. If they cannot agree, the court will make the determination, based on what it perceives to be in the best interests of the child.

Legal custody refers to the right of each parent to be involved in decision-making regarding the child’s educational, health, religious, and other special needs. The preference of the courts in New Jersey is to grant joint legal custody.

How Is the “Best Interests of the Child” Defined in New Jersey?

Courts tend to believe that the best interests of the child are served by regular and meaningful contact with, and involvement of, both parents. Other factors the court might consider include:

  • Age and gender of the child
  • Physical and mental health of the child and both parents, including the ability to parent, as well as any instances or allegations of domestic violence or abuse
  • Respective lifestyles of both parents, including substance abuse issues or inappropriate exposure to sexual inappropriate behaviors or materials
  • Emotional bond between the child and each parent
  • Ability of each parent to meet the child’s financial, physical, and emotional needs
  • Lifestyle and routines to which the child has become accustomed
  • Impact a change of residency will have on the child
  • Preference of the child, if the child has reached a certain age, typically 12 years of age

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9 a.m. and 5 p.m.

The Role of Fault in a New Jersey Divorce

Can Courts Consider Fault In Divorce Proceedings?

The Role of Fault in a New Jersey DivorceThough all 50 states have adopted some form of no-fault divorce, only 17 are considered pure no-fault states. In New Jersey, a court may consider the actions of the parties when making decisions regarding marital dissolution.

What Does No-Fault Divorce Look Like in New Jersey?

For centuries, a party seeking divorce had to identify for the court grounds to justify the divorce. Traditionally, those grounds included infidelity, dishonesty, mental illness, criminal conduct, and abuse, among other issues. The modern trend in the United States, including New Jersey, is to allow parties to obtain a divorce if they simply claim to have “irreconcilable differences.”

“Irreconcilable differences” means that the parties disagree about many things and believe there’s no reasonable expectation that they’ll resolve their differences. Proponents of no-fault divorce contend that divorce is less challenging for children when they don’t have to witness their parents airing their grievances to support a divorce complaint.

What Is the Benefit of Alleging Fault in a New Jersey Divorce?

Though the ability to allege “irreconcilable differences” has made divorce simpler for many in New Jersey, the state still allows a party to assert fault. Fault-based grounds for divorce in New Jersey include:

  • Physical or mental cruelty
  • Willful desertion
  • Adultery
  • Continual substance abuse (for at least 12 months)
  • Imprisonment
  • Institutionalization in a mental facility
  • Abandonment

New Jersey courts may consider adultery and other forms of fault when ruling on the availability of alimony or spousal support. As a general rule, fault does not affect custody and visitation, unless the court determines that the wrongful act poses a risk to the minor child. Fault is not a factor in property settlement in New Jersey.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9:00 a.m.–5:00 p.m.

Child Custody in New Jersey

The Test to Determine Whether a Custodial Parent Can Relocate Out-of-State

Child Custody in New JerseyIn divorce proceedings where there are minor children involved, custody and visitation are important and often complicated issues. New Jersey courts have long recognized the value of having both parents involved in the upbringing of their child. Accordingly, until the turn of the 21st century, a custodial parent who wanted to relocate to another state faced an uphill struggle.

In 2001, state courts relaxed the standards dramatically, citing advances in technology that make it easier for parents and children to communicate at a distance, as well as trends in other states allowing more out-of-state relocations. Child psychologists argued that happier parents make happier children and suggested that the best interests of the children are better served when some of the critical needs of parents are met as well. The New Jersey Supreme Court took all those factors into consideration and issued a new standard for parents who wanted to relocate to another state: they needed only to show a “good faith reason for asking to move out of state” and demonstrate that the move would “not be inimical to the children’s interests.” The court further stated that the potential impact on the noncustodial parent’s visitation, was not, in and of itself, sufficient reason to deny a request to move out of state.

That standard remained in force until 2017, when the New Jersey Supreme Court revisited the matter. The court observed that the trend that had begun around the turn of the century had not expanded since—no additional states were expanding the rights of custodial parents to relocate out-of-state. Furthermore, additional social science studies brought into question the impact of such relocations on children. Accordingly, the New Jersey Supreme Court rejected the “good faith/inimical” test in favor of one that focuses on the “best interests of the child.” In essence, the analysis has shifted from a consideration of the rights of the custodial parent to an examination of the best interests of the child.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9:00 A.M. – 5:00 P.M.

Equitable Distribution in New Jersey Divorce Proceedings

How Marital Assets Are Divided by the Court (When You Can’t Agree)

Equitable Distribution in New Jersey Divorce Proceedings In the state of New Jersey, when you file for divorce, one of the more challenging tasks you’ll face is the division of marital property—the debts and assets accumulated during your marriage. If you and your spouse mutually agree on how to allocate things, the court will still review your agreement to ensure that there’s no indication of undue influence, misrepresentation, or coercion. If you cannot agree who will receive specific property and who will be obligated to pay certain debts, the court will make those decisions for you.

New Jersey has long applied the concept of equitable distribution to determine how a marital estate is divided. It’s important to understand, up front, that “equitable” distribution does not necessarily mean “equal” distribution. The court will attempt to create a property settlement that is “fair,” based on a wide array of factors, including:

  • How long you have been married;What income or property each party brought into the marriage;
  • The standard of living to which the parties were accustomed during marriage;
  • The age and physical health of the parties at the time of divorce;
  • The terms of a valid prenuptial or postnuptial agreement signed by both parties;
  • The extent to which either party wasted or dissipated marital assets;
  • The earning capacity of the parties at the time of divorce;
  • The contribution either party made to the training, education, or earning power of the other party; and
  • The need for one party to occupy the marital home, such as a custodial parent of minor children.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9:00 A.M. and 5:00 P.M.

Determining the “Best Interests of the Child”

Factors Used by Courts to Establish Custody and Visitation

Determining the “Best Interests of the Child”In New Jersey, as in all states, courts must consider the “best interests of the child” when making decisions about physical custody and visitation. Courts look at a number of factors when making that assessment, including:

  • The ages of the minor children—Although the presumption is slowly changing, there’s still a strong perception that infants, toddlers, and younger children should be with their mother, particularly when the mother has served as the primary caregiver. Known as the “tender years” doctrine, it’s no longer enforced but still carries influence in many courts.
  • The living situation of each parent—Because of the importance of stability in a minor child’s life, courts look at where each parent lives, how permanent that residence is, and whether it provides for the needs of the child. Often, the result is that the parent who retains the family home is more likely to get physical custody. Conversely, a spouse who’s temporarily living with friends or family is less likely to get custody and may even experience limitations in visitation.
  • The willingness of each parent to cooperate with the other—Judges discourage parents from bringing conflict into the parenting relationship. As a general rule, the more cooperative you are with your ex-spouse, and the less evidence that you’ve spoken negatively about the other parent, or tried to alienate your child’s affection of the other parent, the more likely you’ll get favorable custody or visitation arrangements.
  • The strength of a parent’s bond with the child prior to divorce—If you weren’t very involved before the marriage fell apart, a judge is less likely to require the child to spend time with you, unless you can show a meaningful change of heart.
  • The child’s wishes—Typically, the wishes of the child are considered only if the child is 12 years of age or older.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9:00 A.M. to 5:00 P.M.

The Requirement of Separate Legal Counsel in New Jersey Divorce Proceedings

The Requirement of Separate Legal Counsel in New Jersey Divorce ProceedingsThough many divorce proceedings can be contentious, it’s not uncommon for married parties to terminate their relationship amicably. Because a divorce proceeding can be costly, there may be a desire minimize expenses by hiring a single attorney to handle all the details. In New Jersey, that is not permissible.

Under the ethical rules in New Jersey, it is considered an inherent conflict of interest for an attorney to represent both sides in a divorce proceeding. Even where parties appear to be in agreement, there’s a concern that one party might unduly influence the other or engage in misrepresentation. Furthermore, it’s often the case that what is in the best interests of one party is not in the best interests of the other party. For example, when establishing child support, the custodial parent has a vested interest in receiving more support, whereas the non-custodial parent may seek to minimize payments. An attorney representing both sides simultaneously cannot properly advocate for both parties.

In some cases, though, an attorney may draft a divorce settlement that affects both parties. If the parties go to a mediator or work out an agreement on their own, then one of them may take the terms of that agreement to a single attorney to draft the document. Typically, the attorney will send the draft agreement to the other spouse, advising that they have it reviewed by separate legal counsel. If the other party fails to respond or indicates no objection to the terms of the agreement, the attorney typically notes that fact in the agreement. The agreement is then submitted to the court and becomes the basis for a divorce decree.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9:00 A.M. and 5:00 P.M

How Child Support Is Determined in New Jersey

Who Has a Child Support Obligation? | How Is Child Support Calculated?

How Child Support Is Determined in New JerseyIf you’re involved in a New Jersey divorce and there are minor children in the home, or a child is expected, your divorce decree will typically include an order for child support. You and your ex-spouse can, of course, agree on who will pay support and how much will be paid. If you do, you can sign a Consent Support Agreement and avoid involving the court.

However, if you can’t come to an agreed-upon amount of child support, the court will do so for you. The court may consider a number of factors when calculating child support, including:

  • the needs of the child,
  • the financial resources, including income, savings, investments and other assets, of both parents,
  • the standard of living to which the child has become accustomed during the marriage,
  • the potential earning ability of each parent,
  • the income and assets of the minor child,
  • the education requirements for the child,
  • the age and health of all parties, and
  • any other relevant factor.

Under established New Jersey law, after a divorce, both parents have joint responsibility to provide for their children. Courts assume that, when the parents were married, they combined their income to meet the obligations of the entire family. Accordingly, the same principle applies after a divorce—the court bases the support order on the combined net income of both parents.

The court then calculates the amount of support from pre-established worksheets, based on how much time the minor child spends with the non-custodial parent. If the child spends all of his or her time with the custodial parent, support is calculated according to the sole parenting worksheet (Appendix IX-C). If the child spends time with the non-custodial parent, the court may, in its discretion, use the sole parenting worksheet or apply the shared parenting worksheet (Appendix IX-D).

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9 A.M. and 5 P.M.

Equitable Distribution in a New Jersey Divorce

What Factors Does the Court Consider?

Equitable Distribution in a New Jersey DivorceFor purposes of allocating the assets and debts accumulated during a marriage, the state of New Jersey follows the legal principle of equitable distribution. Under equitable distribution, if the parties to a divorce cannot agree on the division of property and obligations, the court will attempt to distribute the estate fairly. It’s important to note that “fairly” does not necessarily mean equally.

Criteria Used to Allocate Marital Debts and Assets

New Jersey courts consider a wide range of factors when determining what is fair or equitable, including, but not limited to the following:

  • how long the parties have been married,
  • the standard of living to which both parties were accustomed during the marriage,
  • the age and health (physical and emotional) of both parties,
  • whether there was a valid prenuptial or postnuptial agreement governing distribution of property,
  • the extent to which either party brought income or assets into the marriage,
  • the respective income and earning potential of each party,
  • whether one party delayed education or career advancement for the sake of the marriage or to the benefit of the other party,
  • contributions either party made to the education or earning potential of the other,
  • non-cash contributions of either party to the marriage, including childcare and homemaking, and
  • any other relevant factors.

As a general rule, New Jersey courts don’t allocate fault when dividing marital assets, but there are exceptions:

  • when one party wasted or dissipated marital assets through wrongful conduct, such as an extramarital affair, or
  • where one party engaged in egregious behavior, such as physical violence or abuse.

The relative weight of the various factors is entirely within the discretion of the judge.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9 A.M.–5 P.M.

Contempt of Court in New Jersey Divorce Proceedings

What Constitutes Contempt? What Happens If a Party Is Found in Contempt?

Your divorce is final. You’ve reached agreements with your ex about custody, visitation, and support, and the court has documented your arrangement in a written order. What happens if your spouse chooses not to abide by the terms of the divorce decree? What power do you or the court have to make sure your agreements are honored? The answer involves contempt of court citation.

What Is Contempt of Court?

In the American justice system, parties are bound by law to follow court orders, including divorce decrees, custody orders, and support orders. A person who intentionally violates such an order can be found in contempt of court. In divorce proceedings, contempt of court typically involves a failure to pay child support, refusal to make a child available for visitation, or taking the child out of the state or country in violation of a court order

What Are the Potential Penalties for Contempt of Court?

New Jersey courts have substantial latitude with respect to the penalties for violating a court order. One of the most common sanctions is the requirement that the person found in contempt pay the other party’s legal fees. In most cases, the offender faces fines, though the court has the power to take away the perpetrator’s drivers license and even sentence the offender to jail time.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9:00 A.M. and 5:00 P.M.