Clients always want to know how will a divorce affect their children. Some are concerned about the emotional impact on the children themselves while others are interested in issues of visitation, parenting time plans, holidays and child support. All of these issues, generally, are decided by having the court determine what is in the child or children’s best interest, when the parents cannot decide.
What factors a court looks to when determining the best interest of a child can be found in N.J.S.A. 9:2-4(c). They include:
- The parents’ ability to agree, communicate and cooperate in matters relating to the child;
- The parents’ willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse;
- The interactions and relationship of the child with its parents and siblings;
- Any history of domestic violence;
- The safety of the child and the safety of either parent from physical abuse by the other parent;
- The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision;
- The needs of the child;
- The stability of the home environment offered;
- The quality and continuity of the child’s education;
- The fitness of the parents;
- The geographical proximity of the parents’ homes;
- The extent and quality of the time spent with child prior to or subsequent to the separation;
- The parents’ employment responsibilities;
- The age and number of children.
These factors are more clearly defined by our courts in several decisions. The “paramount consideration” in every determination is “the safety, happiness, physical, mental and moral welfare of the child.” Fantony v. Fantony, 21 N.J. 525, 536 (1956).
The same standard is used for custody issues
Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c). Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). That statute allows the court to make any custody arrangement that is “in the best interests of the child.” N.J.S.A. 9:2-4(c). The same statute requires a judge to consider and weigh a number of factors before making a custody determination, including “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” In addition, the court must specifically state the statutory factors “which justify any custody arrangement not agreed to by both parents.” N.J.S.A. 9:2-4(f).
For there to be a change in custody, there must be a significant change in circumstances since the last custody order. Generally, something must have changed in the home where the child resides to make the home no longer safe, emotionally, mentally or physically, to the child. It is also possible for custody to change at the request of the child, which may be enough alone if the child is old enough.
The party requesting a modification of a custody decree has the burden of demonstrating a change of circumstances significant enough to warrant the requested modification and that the proposed change is in the best interest of the child; that the change will promote the “safety, happiness, physical, mental and moral welfare of child.” Mastropole v. Mastropole, 181 N.J. Super 130, 136 (App. Div. 1981).
In Mastropole, the mother was awarded sole custody and the father limited parenting time. Three and a half years later the court modified custody to joint custody. Upon appeal, the court found that a change of custody, to joint custody, was not in the best interest of the child. The Plaintiff did not satisfy, aside from a change in circumstances, that such a relationship with both parents exists that the child would benefit from joint custody. The child must recognize the both parents as a source of security and love and wishes to continue both relationships. Id. at 137. There, the child was “ambivalent” as to how he felt about the father.Id. at 138. He wanted to stay with his mother. Also, the child was not enthusiastic about staying with his father overnight on weeknights. The fact that the homes were close and both homes were close to the child’s school were not enough to award joint custody. Id. at 139.
In O’Connor v. O’Connor, 349 N.J. Super. 381 (App. Div. 2002), the Plaintiff appeals from a denial to relocate her family to Indiana and gave Defendant primary physical custody. The parties agreed to joint legal custody of the child and primary physical custody with the Plaintiff, with reasonable and liberal parenting time for Defendant. The parties were found to have a shared parenting arrangement. The father shared de facto physical custody and exercised a bulk of the custodial responsibilities. Here, the trial judge made specific and detailed findings concerning the custodial relationship between plaintiff and defendant that centered not only upon the division of the child’s time with each parent, but also on the division of key custodial responsibilities, such as bringing the child to and picking the child up from school; helping the child with his homework assignments; bringing the child to and attending his sports and school activities; preparing and planning the child’s meals; caring for the child overnight; and attending to the child’s medical and other health needs. The judge found both parties shared these primary custodial responsibilities. Though the court found that the child would fair well with either party, in Indiana or New Jersey, the court found that it would be inimical to the best interest of the child to take him away from New Jersey and his father.
In Watkins v. Nelson, 321 N.J. Super. 482 (App. Div. 1999), the Court denied the biological father’s application to give him primary physical custody of his daughter. The custody of a child was given to the family of the biological mother over the biological father, where the mother had died. The judge found that it would be in the best interest of the child to continue to reside with the mother’s family. The mother’s family had actively participated in each of their children’s schooling, equally with the current child. Further, the family is very open and supportive of the biological father’s relationship with the child and understand the child needs to relate to him. This includes inviting the biological father over to their residence and attempting to learn about the father’s religion, Jehovah’s Witness.
In Sanchez v. Rivera Docket No. FD-16-000825-05, the record confirms that there was a significant change in circumstances beginning in November 2010, which warranted a change in residential custody and would be in the best interest of the child. The child was frequently late for school, more than half of the school days, because of the mother, she did not have breakfast because she was late, and she was allowed to stay up late on school nights. This jeopardized her physical and educational well-being. The school had given notice to the mother on several occasions regarding the child’s constant tardiness and her slipping grades, however nothing was done. Further, the child slept in the living room and did not have a bedroom. The court found that staying with the mother would be inimical to the safety, happiness, physical, mental and moral welfare of child and it would be in the best interest of the child to stay with the father.