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Essential Tips for Seeking Sole Custody

At our New Jersey family law firm, our NJ child custody attorneys frequently receive inquiries from prospective clients about seeking sole custody of their children.  A request for sole custody can be complicated because many parties to a divorce do not clearly understand that “sole custody” is actually a misnomer because there are two types of custody – legal custody and physical custody – so the term “sole custody can apply to legal custody, which involves notice and input on major decisions regarding the children’s education and welfare or to physical custody, which refers to where your children live.  Many parents who inquire about sole custody wish to receive sole custody in both senses, but this is extremely uncommon.

The range of available parenting time and other custody arrangements that a NJ family judge may order include a number of options based on the family law judge’s evaluation of the “best interest of the child” standard.  It is important to recognize that a request for sole custody typically will require convincing evidence on the fitness issue during a plenary hearing because of  the public policy clearly articulated in favor of joint physical custody under New Jersey N.J.S.A. 9:2-4, which provides: “The legislature finds and declares that it is in the public policy of this state to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved the marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” [Emphasis Added].

While physical custody may be awarded to one parent who is designated the “residential parent” (also referred to as the “custodial parent”), legal custody is almost always joint unless the court determines at a plenary hearing based on specific evidence that one of the parents is “unfit,” which may be based on substance abuse, history of child abuse or neglect, violent felony record of a parent, pattern of domestic violence against the other parent or similar types of issues that present a serious threat to the well-being or safety of minor children.

Despite this clear articulation of the goal of shared custody and liberal parenting time with both parents, many child custody disputes do result in one parent being designated as the primary caretaker with the other parent being given visitation as a secondary caretaker.  The NJ family law judge will consider a broad range of factors when considering the best interest of the child that include:

  • The safety of the child
  • Ability of the parents to work together and communicate
  • Risks to the child or other parent from physical abuse by the other parent
  • Nature of the relationship between the child and parents and/or siblings
  • Prior acts of domestic violence
  • Child’s preference depending on age and maturity
  • Stability in the home where the child resides
  • Cooperation and willingness of a parent to cooperate with the other parent’s custodial time
  • Extent and quality of parenting time exercised prior to separation
  • Distance between the homes of parents
  • Impact on the child’s schooling
  • Work schedules and employment responsibilities
  • Parental fitness
  • Number and age of children

This long list of factors provides a clear example of why anyone seeking sole custody in our state needs an experienced NJ child custody attorney at their plenary hearing when seeking sole custody.  When preparing for a custody hearing where you are seeking sole custody, whether just physical or both legal and physical, you generally will need to provide convincing evidence of the lack of fitness of the other parent.  Evidence that may be relevant includes:

  • Police reports or records of conviction involving child abuse or domestic violence
  • Law enforcement and court records involving DUI or drug convictions
  • Information involving investigations of abuse or neglect allegations by child welfare agencies
  • Medical records regarding prior domestic violence and physical abuse of either the child or parent seeking sole custody
  • Documented mental illness or physical disability that impairs parenting ability

An important issue that the judge may consider when deciding the impact of such fitness issues is whether any of the alleged incidents are fairly recent.  There are practical issues that arise if all of the allegations involve events in the distant past, but a parent argues the incidents make sole custody necessary or appropriate.  If the children have been left in the care of the other parent prior to you seeking sole custody, the court may question the legitimacy of your concerns about the safety of your kids during periods when your kids would be sharing parenting time with the other parent.  Our experienced New Jersey child custody attorneys understand these practical considerations and can advise you regarding your prospects of obtaining sole custody, prepare persuasive court documents and provide a compelling courtroom presentation in pursuit of your objective of obtaining sole custody at your NJ plenary hearing.

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