It’s a common question that ‘most every family lawyer gets asked by clients: “How will my children be affected by the divorce?” As attorneys who focus our practice on New Jersey fathers getting a divorce, I probably hear it more than many other practitioners.
There is no set answer. Every child is different and the dynamics that lead to a divorce differ from one family to another. Still, there are some general guidelines that can help.
In March, 2019, I wrote about a university study that looked at how kids react to hearing their mom and dad are splitting up at different ages. There is a related concern many fathers have who want sole or joint custody of their children: What will a judge look at when considering who gets the kids as custodial parent or if there should be a shared parenting role?
The court’s overriding concern is what will be in the best interests of the children. In other words, what custody arrangement will most-likely ensure that your kids are safe, happy and be physically, morally and mentally well-off.
Criteria in Determining Father’s Custody in New Jersey
Family law statutes in New Jersey are very specific about the criteria a judge is to use in resolving custody issue and what is in the best interests of children.
There are 14 of them and they cover everything from the ages of the kids and the ability of the divorcing parents to communicate to the needs of the child, the stability of the home that would become the custodial residence of youngsters, interactions between siblings and their relationship with each parent, and how close the parents live to each other since they split.
More specifically, the court will consider a number of factors involving the health, safety and well-being of children:
- Any history of domestic violence and which parent committed it.
- Related to the first point is the safety of the children as well as the safety of the custodial parent from abuse inflicted by their former partner.
- Any history of drug or alcohol dependence and abuse by either parent.
- The financial, emotional and physical fitness of each parent to rear a child.
- The quality of the time each parent spent with the children before or after their separation.
Finally, judges will examine the employment responsibilities of both parents, the quality of the kid’s education and their ability to continue in the same school, and the employment responsibilities of each parent. For example, a parent who travels extensively for work is not likely to convince the court that they should be made the custodial parent.
For children who are old enough to express a reasoned preference, a family law judge will take this into account as well.
These principles are not only enshrined in New Jersey law but reinforced by court decisions dating back to 1956.
Impact on Father’s Custody Rights in New Jersey
In recent years judges have become more willing to consider a New Jersey father’s petition for sole or shared custody, At the same time, changing an existing custody order to make the father a custodial parent is difficult to do.
When a father wants to do this, he must convince the court that changes to the mother’s circumstances are so significant that the happiness, safety and welfare of the children is at risk. Simply because she has started dating a new man seldom is considered sufficient grounds. However, if it can be proven that the two of them have started drinking heavily every day to be a threat to the kids, a judge is more likely to pay close attention.
Another cause for asking for a change might be if it can be proven that she is allowing the children to stay up to unreasonable hours or if there are demonstrable signs that she has become involved with a cult or religion that may result in her abducting the children or subjecting them to propaganda.
A more frequent occurrence these days happens when a mother who is the custodial parent and has to move out of state for work is another legitimate e reason a court will reconsider the custody order, as it will if she has lost her job and has been unemployed for several months.
Whatever the reason, the burden of proof is on the parent who wants the custody decree set aside and reconsidered. It is a steep hill to climb.
Still, as divorce attorneys whose practice focuses on representing fathers in New Jersey, we have had success in setting aside an existing custody order as well as presenting a strong case for giving dads sole or shared custody of their children.
If you want to discuss any custody issues, feel free to call me or any of the attorneys at the family law firm for men in New Jersey. Reach us at either 973.562.0100 in Nutley or, in Montclair, at 862.245.4620. Contact us.
