Some parents who are going through a divorce or a custody battle are comfortable with the idea of splitting custody, while others believe they should have their child full-time for one reason or another. Fathers who fall into the latter category often go into their case thinking it’s common to be granted sole custody; I’m asked this question all the time from potential clients.
First, it’s very important to know that you probably will not get sole custody of your child during your divorce or custody case. This can be a heartbreaking thing to realize, and it may be difficult to accept. It’s very challenging when you’re speaking with someone who’s a prospective client, and they have years of negative experiences and history with their co-parent, and yet you’re telling them that they can’t get the type of custody they feel they deserve. Unfortunately, a lot of prospective clients think attorneys who are honest about this fact are not willing to fight for them, or that they’re not qualified, or that they just aren’t the right attorney.
Don’t make these false assumptions if your New Jersey custody lawyer tells you not to expect sole custody in NJ. This type of thinking can really hurt a custody case, especially when clients believe they know better than their attorney. It’s true that you know your child and your family better than the attorney does, but they know the law and have seen many cases similar to yours. In reality, it’s important to know the limits of the law before you start blazing into court and start asking for something. The reasons for sole legal custody are few and far between, and the way the law handles custody has nothing to do with the quality or education of your lawyer.
Understand Why You Won’t Get Sole Custody
To understand why you won’t get sole custody, I think it’s important to understand what it actually is. Now basically speaking, there are two types of custody:
Legal Custody- You can have sole legal physical custody or joint legal custody
Physical Custody- You can have sole physical custody or joint physical custody
You can have any combination of legal and physical custody. Usually, you’re going to have joint physical and legal custody. Otherwise you could theoretically have sole physical and legal custody, but again, chances are you won’t get sole custody unless there are exceptional circumstances.
According to New Jersey custody laws, legal child custody deals with who makes the important decisions for the child, education, religion, residence, relocation. Those are going to be the major decisions that a person with either sole or joint legal custody will be making. Physical custody is the amount of parenting time the other parent has. Even if the other parent has an hour of parenting time over the course of a year, that’s still going to be considered joint physical custody, but that’s probably not that important. The people who seek sole custody are seeking more of the legal sole custody. They want the ability to make decisions without input. They want to be able to relocate without any problems or having to go to court. The information in this series is geared towards that area, not the physical custody area.
Constitutional Issues You Have to Overcome
To understand why it’s so difficult to receive sole legal custody, you must understand the different layers of laws that apply to a custody case. It’s not only about the best interest of the child, although this is the ultimate consideration for a judge. Parents do also have rights when it comes to child custody.
First, you have to look at the constitutional area of law that says a parent has a fundamental constitutional right to a relationship with his or her child. While it may seem easy for the courts to intervene in a custody case, that’s only because you’re giving them that right by bringing it to a court. Fundamentally, you have the right to a relationship with your child and to have it unhampered from the court.
Presumption of Fitness
In most states, and even in New Jersey where if you are a parent of a child, you are presumed to be fit to parent that child. It’s the other parent’s responsibility or the court’s duty to find if you are unfit, but they have to overcome that burden that you walk in presumed to be fit for custody of your child. Remember that, if you believe the other parent is unfit, it is also your responsibility to prove that to the court. To compel a judge to make that declaration, you need to have solid reasoning with examples of unfit behavior. Generally parents are only declared unfit if they are failing to meet the basic needs of the child in some way, like in cases of abuse or neglect, or if they are engaging in risky behavior that puts the child in danger.
Then there’s the underlying psychological belief that pervades the courts right now, and that is that any child benefits by having both of his or her parents involved in his or her life. New Jersey used to have what’s called the Tender Years Doctrine, which has now been widely rejected. That law used to say that a child was best served with his or her mother. That was based on the psychological belief at that time that a mother was more nurturing and better capable of parenting a child. That’s been replaced. Current New Jersey law has an underlying psychological current that states that a child is benefited by having both parents involved. If you’re seeking sole custody, you need to overcome that issue also.
Look at Custody Factors in New Jersey
Next, you have to turn to the actual custody factors in New Jersey. I’m going to actually go through all of them – and there are many.
Custody factors are:
- Parent’s ability to agree or cooperate
- Parent’s willingness to accept custody
- Interaction of the child with parents
- History of domestic violence
- Safety of the child with the parent
- The preference of the child based on the child’s age
- The needs of the child
- Stability of the home environment
- Continuity of education
- Fitness of the parents
- Proximity of the two homes
- Extent of time spent with the child before the separation
- Employment responsibilities
- The age and number of the children.
In order for you to get sole custody given these factors, you need to be able to show the court that all of these factors weigh in favor of not having the other parent involved in the decisions. Just looking at the sheer list of factors, we can see that it’s a very difficult thing for most parents to prove given what I already talked about – constitutional rights and the psychological presumption.
To be able to take all these factors and show that they point towards having one parent removed from a child’s life is next to impossible. If you were even to get to that stage, which, again, is very unlikely, the next issue would be the best interest of a child standard, which is a standard that applies to everything when you talk about a child.
Even though we have the custody factors I just mentioned, you’ll be hearing things like material and substantial change of circumstances warranting a change of custody. That’s all relevant, but all of this is guided by what’s called the best interest of the child. Now this goes against sole custody primarily because one, it’s an ambiguous term. Judges do everything they can to refrain from giving sole custody in the first place because of everything I just mentioned. When they’re left determining a child custody issue they can rely on the best interest and say, “It’s not in the child’s best interest,” because there’s nothing that says what is and what isn’t. It differs by circumstance.
The Best Interest of the Child Standard
When you do have issues concerning the best interest of the child, you have to make a compelling argument that your proposed custody arrangement will actually be best for the child. Most of the time the reason people are seeking sole custody is because it’s in their best interest. There’s a lack of communication about the child, or one parent doesn’t stick to a consistent custody schedule, but that all deals with the parents. The best interest standard isn’t particularly concerned with the parents’ inconvenience; it has to be best for the child. Sure, it may make the parent’s life and communication more favorable and easy if they have sole custody, but it’s very hard if not impossible to show how those issues are actually in the best interest of the child. Remember, the word is best, not better, or good for, or accommodating, but it’s best.
You have that burden of showing that’s best for the child. Your co-parent’s unfit behavior needs to be directed toward your child, and it has to be very serious to convince a judge that it’s in the child’s best interest to not spend any time with that parent. Even with reasons such as domestic violence between the parents, the judge will likely still allow both parents some amount of visitation if there is not documented abuse of the child. However, the judge may put other stipulations on the custody agreement, such as supervised exchanges, to ensure both parents feel safe and comfortable if abuse or domestic violence was an issue during their relationship. If you’re trying to minimize the amount of time your child spends with their other parent, something like supervised visits or limited parenting time may be a good enough solution in your mind.
How to Get Sole Custody: Some Circumstances Suggest Sole Custody
There are some circumstances where the law suggests there should be sole custody. One, where there’s a chronic history of lack of communication and the parents can’t work in the child’s best interest. For example, a narcissist parent who has consistently used their child as a pawn to harm their ex may ultimately lose custody if that behavior has damaged their child. Again, just because your ex is a narcissist doesn’t mean she will not be entitled to joint custody. Her behavior has to actually be in conflict with the best interest of your child for a judge to seriously consider awarding you sole custody. However, keep in mind that a judge can order certain conditions, such as your ex having limited communication with you, to try to make things easier for you and your child.
Another indicator that would suggest sole custody is the issuance of a final restraining order. Now, the issuance of a final restraining order actually carries with it a presumption that the recipient should have sole custody, but I still find that most judges will resist as much as possible, actually giving that phrase in the final restraining order because of all the reasons I mentioned before. They don’t want to do that, so you almost have to go in there knowing that your restraining order will carry presumption and fight to get that. Even if you do get it in your final restraining order, in my experience, it can be changed subsequently very easily, and again, for all the reasons that I’ve mentioned, you may not be able to hold on to permanent sole custody.
Don’t Expect Sole CustodThis article explains how to understand the reasons why you may not be able to get sole custody of your child. It advises reviewing custody laws, assessing personal circumstances, and seeking guidance from a family law attorney.
In short, don’t expect to get sole custody of your child in New Jersey. If you speak to a family law attorney who suggests that you should seek sole custody, be wary of that advice. Most attorneys in NJ know how the system generally operates, so they’ve seen how difficult it can be for parents to be granted sole custody. There is precedent that should be considered before a lawyer suggests what type of custody arrangements their client can choose from.
However, all that being said, if you feel your child is in danger of being abused or neglected when in the custody of your co-parent, absolutely voice those concerns to your attorney. Judges want to keep kids safe, and most take that responsibility seriously. If you have evidence that your child is being harmed, your attorney can help you turn that into a compelling argument for sole custody. Even if you aren’t awarded sole legal and physical custody of your child, your lawyer will help you request certain safeguards to ensure you and your child are protected.