Seeking Sole Custody – You Probably Won’t Get It
The title may seem a little odd because I’m talking about a negative when people are usually looking for how to become successful with something. First, it’s very important to know that you probably will not get sole custody. Now I’m asked this question all the time from potential clients asking for sole custody. It’s very challenging when you’re speaking with somebody who’s a prospective client, and they know any experience or history that you may or may not have, and you’re telling them that they can’t get something. A lot of people think you’re not willing to fight for them. A lot of people think maybe you’re just not qualified or the right attorney. It’s really important to know the limits of the law before you start blazing into court and start asking for something.
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 sole legal, you can have sole physical. You can have joint legal. You can have joint physical. Usually, you’re going to have joint both, or you’re going to have sole both, but again chances are you won’t get sole.
Legal 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 Issue You Have to Overcome
Let’s talk about why you’re not going to get it, and to understand that, you have to understand the different layers of laws that apply to a custody case. It’s not just a best interest of the child, which we’ll get to. 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. 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. Now New Jersey used to have what’s called the Tender Years Doctrine, which I don’t know if it’s technically been overturned, but I think it has been. At least, it’s been 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. The current New Jersey law has an underlying psychological current that states that a child is benefited by having both parents involved, so 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’s many. Normally, I wouldn’t do that because it’s tedious if you’re reading this post and trying to get some quick information. I’m going to give it to you in case you do have a custody case coming up of any type. You can quickly get this list from this blog and be able to use it.
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.
Now 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. Now just looking at the sheer list of factors, it’s nearly impossible given what I already talked about, constitutional right, the psychological presumption. To be able to take all these factors and be able to 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, unbelievable that you could, 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 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.
Best Interest for the Child – Not Yours
When you do have issues about the best interest of the child, it has to be that it’s best for the child. Most of the time people that are coming in for sole custody are coming in for reasons like there’s domestic violence. There’s a lack of communication, but that all deals with the parent. The best interest means it has to best for the child. Most of the time the reasons people are seeking sole custody is because it’s in their best interest. It makes their lives and communication more favorable and easy, but it’s very hard if not impossible to show how those issues are actually in the best interest of the a 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.
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, and 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’s been changes subsequently very easily, and again, for all the reasons that I’ve mentioned.
Don’t Expect Sole Custody
In short, don’t expect to get sole custody. If you go to an attorney and ask for sole custody, and that attorney tells you, “Yeah, let’s go, let’s do it,” chances are you’re with somebody who either doesn’t know his or her job very well or doesn’t really care as much about serving the client as they do as advocating for the client. There’s nothing wrong with that. You really should take the contents of this blog to heart and ask that person if they really think they’re going to overcome everything that I’m mentioning. If the answer is yes, they can go for it. If they can’t give you that answer, then it’s not going to happen, and I don’t recommend you do it.