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Emergency Child Custody: Best Interest Custody Standards

The Micklin Law Group- Emergency Child Custody: Best Interest Custody Standards

This series discusses the ins and outs of requesting emergency child custody in New Jersey. To read the other articles, visit The Micklin Law Group’s blog.

When requesting emergency custody, it’s important to understand the more general standard of best interests when it comes to custody matters. When you are filing an emergency custody application, you are going to be arguing there’s immediate irreparable harm to the child, but ultimately every decision about a child turns on whether or not it’s in the child’s best interests. And that’s a very broad standard with very little definition to it. There are a number of custody factors that we will briefly touch on that you need to consider when you are filing an emergency custody issue.

Best Interest Custody Factors

There are many custody factors the court will look at any time it has to make a custody decision, whether it’s an initial custody decision for new parents going in, or in a divorce case, or an emergent application. Now, not every emergent issue requires the court to look at every custody factor. So you need to look at these factors to see if they are relevant to your case because if a judge is going to want to address them, you want to be prepared with answers to them.

Ability to Agree and Communicate Regarding the Child

Usually if you’re in this kind of a circumstance and you’re filing an emergent application, hopefully you’ve tried to communicate, and it’s been unsuccessful. 

Parent’s Unwillingness to Accept Custody

This generally is not a significant issue in an emergent application. It’s one of the custody factors for more general custody decisions, so if your emergent application will eventually be seeking the change of custody, this will be a factor that will later be discussed by the court. However, it’s not necessarily relevant to your immediate emergent filing.

Interaction and Relationship With the Children, Parents, and Other Siblings 

This is talking about the family situation, short- and long-term, including a history of domestic violence, whether the child is safe from physical abuse, safety of either parent from physical abuse by the other parent, or the safety of the child. Going back to the history of domestic violence: there may not be a documented history, and that doesn’t need to be the case. There doesn’t need to be a restraining order to have a history of domestic violence or to have safety issues from physical abuse. So don’t feel limited by that, but understand that these are factors the court should be alerted to in your filing.

Additional Preferences of the Child, When of Sufficient Age and Capacity

This factor is a little nebulous. In my experience, more often than not, judges don’t speak to children. They often feel they don’t have the background or the experience or education to know about child psychology. They know law and they know legal issues, but they don’t know much more than we do about child psychology other than what they glean from their practice.

But there are judges who will occasionally meet with a child. A lot of times it’s going to be what’s called an in-camera interview, which means behind the chamber there’s a door in private. Usually lawyers are not there, but it is recorded. More often than not, you can submit questions or things to be brought to the child’s attention.

People will often ask, “At what age does a court tend to listen to a child?” And to some extent there’s no set age. I’ve had cases where I’ve had 18-year-old college students and a judge says, “You’re not picking who you live with. It’s too sophisticated a decision to make, and I’m not going to put you in between your two parents.” But that being said, in my experience, around thirteen or fourteen a child is at a sufficient age and maturity to be listened to. Now rarely, if ever, does a judge fully rely on what a child says, but around those ages they’ll start to listen to him or her more often.

The Needs of the Child

Education, emotional, medical, and religious needs are going to be important for both your emergent application as well as any final decision or custody hearing.

Stability of the Home Environment Offered

Again, if you’re changing custody and you’re uprooting a child, you want to make sure the court knows that the child will be safe, protected, happy, and healthy where they are going. That’s going to be more important than it may seem. The most common reason a judge will deny an emergent application or a change of custody application is because they fear disrupting the child’s status quo. It may be less than ideal, but many judges feel that taking a child out of a home that they know and a school that they know and a system and a schedule, and putting them somewhere else sometimes may be just as harmful as what you’re alleging is happening in the current home. So you want to make sure that the judge knows that the home environment and the schedule and the finances will all be stable.

Quality and Continuity of Education 

Along the same lines, you want to make sure the court knows that the child’s life is not going to be uprooted or affected that much (if at all).

Fitness of the Parents

This is not necessarily a factor courts will go into because it will generally assume both parents are fit. If you’ve co-parented and decided to have a child with somebody, that carries a presumption that you thought they were fit to parent. Now, more often than not, you’re coming in an emergency because there is an issue of fitness, especially if we’re talking about drug issues. Circumstances change. So I’m not saying don’t address it. I’m saying address it when it’s appropriate, when there really is a fitness issue, but don’t go in there saying mom or dad aren’t sufficient to be parents, they shouldn’t have time. Or that you don’t like the way they spend time with the child or the babysitter they chose so they shouldn’t have parenting time. It’s going to seem disingenuous and actually defeat your application before you get there.

Proximity Between Homes 

Again, this is important if you’re sharing physical custody, not necessarily for an emergent issue but something to consider if there will be shared parenting time during the emergent custody review. You want to make sure that it goes back to the continuity of education. You need to consider whether you are in a different school district or there’s a long commute to get the child to school. Additionally, is it difficult to get to the other parent? This is just something that you need to consider.

Extent and Quality of Time Spent with the Child Prior to the Separation

This is not necessarily significant to the average emergent application. It’s more of a basic custody issue unless your emergent application revolves around some kind of indoctrination or alienation or long absence. If the other parent is frustrating parenting time or pitting the child against you, trying to poison the child against you, then explaining what you did have in the past as well as what is being lost now is significant.

Employment Responsibilities

Employment responsibilities can be important, but it’s going to be case by case. You may need to explain that you do have the time available to parent if you’re seeking removal of a child or an increase in your parenting time. You want to be able to show the court that you’re not going to necessarily be dumping your child with a babysitter or in daycare, which isn’t a bad thing if that is the case, but you want to at least explain that. You’re not going to lose custody or lose an application because you need to use daycare, but you want to try to avoid it as much as you can. If you’re taking custody of your child, you want to be able to spend as much time with the child as possible. But nonetheless, either way you want to explain to the court what is your employment responsibility? How will that impact the parenting and custody issues that you’re asking the court to decide?

Agent and Number of the Children 

For obvious reasons, the more children, the more complicated. Arguably, the younger the child, the more complicated too. I mean, obviously anybody who has a teenager may disagree with me, but sometimes having a two year old is more difficult because of archaic beliefs that they shouldn’t be away from their mother, and then there’s breastfeeding issues that often come up.

Addressing Best Interest Factors

The custody actions factors are all significant, but some are going to be more important for the emergent application, and some are going to be more important for the subsequent return. Depending on what issue that brought you to the emergent application, you may or may not need to consider these factors. To really be sure you’re addressing each factor fully, I recommend speaking with a custody attorney in NJ who handles emergency custody. Our attorneys at The Micklin Law Group are happy to help.

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