How is child custody decided?

Unless the parties can agree, custody is determined by the “best interests of the children” standard. Both parents begin the process with an equal entitlement to parenting rights. There are statutory and other criteria, which Judges are to apply in making custody and parenting determinations. Please visit our “Child Custody” page to view a listing of these criteria.

The Supreme Court in Beck v. Beck, 86 N.J. 480, 485 (1981) stated that the “pertinent statute [N.J.S.A. 2A:34-23] provides courts with broad authorization for custody determinations in divorce proceedings ….” See also Terry v. Terry, 270 N.J. Super 105 (App.Div.1994).

Generally, in New Jersey, there are two overall concepts of child custody.

The first is “Legal Custody.” This refers to the authority vested in the parents to make decisions of a non-routine nature, which affect the child’s health education or welfare. For example:

While what to serve a child for dinner on any given day is a routine decision, the decision that a child will be raised in a religion where certain dietary laws and restrictions must be observed is non-routine.

While determining to take a child to be entertained at the movies may be a routine decision, deciding what maturity level the child should be exposed to may be non-routine.

Deciding to bring a child for a haircut is arguably routine, while allowing a child to color, tint or radically cut his or her hair might be more non-routine.

Allowing a child to wear a press-on “tattoo,” providing it is suitable to the child’s circumstances, is rather routine, permitting a child to have a piercing done is not routine.

Deciding to drop a child off at school is routine, while determining that a child will attend a particular school or course of study is not.

We mention these examples, because there are two types of Legal Custody; Sole Legal Custody and Joint Legal Custody. Both have to do with parental authority to make important non-routine affecting the child.

In a Joint Legal Custody arrangement, there is the underlying presupposition that parents will eventually develop the ability to come to joint decisions of a non-routine nature. There must always be consultation between the parents on such issues before a decision of this variety is made and acted upon.

If one parent makes such a decision without consulting the other, the non-included parent can make a motion for appropriate relief before the Court. For instance, one parent signs a child up for summer football camp, without telling the other parent ” who may be opposed to the physical risks involved. The other parent can file a motion with the Court to prevent the child from attending the camp, and to caution the other parent about making any further one-sided decisions of a non-routine nature. The Judge may or may not grant the motion.

In a Sole Legal Custody situation, one parent is the Legal Custodian and does not have to consult with the other in making important non-routine decisions. The other parent, conversely, has a duty to request the custodial parent’s permission or consent to every non-routine parenting decision. If the non-custodial parent, for example, decides to pull a child out of school for a week to go for a surprise trip to Disney World without the express permission of the custodial parent, the objecting parent can file a motion to prevent the unplanned vacation from happening. Once again, a Judge is left to decide the motion on a case-by-case basis.

The Sole Legal Custodial Parent, however, must act responsibly in making decisions that are in the child’s best interests. If the other parent is concerned that the custodial parent is about to make or has made a decision inimical to the child’s best interests, that parent can make an appropriate motion to the Judge, who will decide the case either way.

The second general child custody concept in New Jersey is the concept of physical or residential custody. Residential custody is likewise broken down into subcategories.

Sole Residential Custody. In this custodial arrangement, the sole custodial parent has the child living with them for greater than five days out of the average week, which does not include vacation arrangements. The other parent has parenting time with the child, but less than two overnight equivalents in the average week.

Shared Residential Custody. Here, neither parent has the children more than five days a week, or less than two days a week, on the average In the context of this arrangement, the nomenclature is different. The parent who has the children for the majority of the average week is known as the “parent of primary residence” (PPR), while the parent having the children for less than half of the time is called the “parent of alternate residence” (PAR). This distinction is made, even if the PPR has the children 183 nights out of the year and the PAR has the kids to remaining 182.

Split Residential Custody. In this somewhat unusual scenario, one or some of the children would live primarily with one parent, while the remaining child or children would live primarily with the other. Cases do come up from time to time where certain children would benefit from living primarily with one parent over the other, and vice versa, with the benefit of doing so outweighing the children’s interests in living with their siblings. One example would involve children in two entirely different age groups, with entirely different needs, better met by one parent than the other. Perhaps the couple’s 16 years old figure skating daughter is an Olympics hopeful. Dad’s business has taken him to a locale where the daughter can train with the best of the best. Mom, on the other hand, is a physician with a New Jersey practice and a son who is in kindergarten with some health care issues. Once again, while these arrangements are uncommon, they do occur.

However, this change in nomenclature does not change the fact that one party or the other will usually have the children in their home more than the other. When this is an issue, and the parties cannot agree, there is a process established by the Rules of Court to deal with unresolved parenting issues. Please consider the following guidelines:

5:8-1. Investigation Before Award

In family actions in which the court finds that the custody of children is a genuine and substantial issue the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5.

Included below is the content of R. 1:40-5 for ready reference:

1:40-5. Mediation of Custody and Parenting Time Actions
(a) Screening and Referral. All complaints or motions involving a custody or parenting time issue shall be screened to determine whether the issue is genuine and substantial, and if such a determination is made, the matter shall be referred to mediation for resolution in the child’s best interests.

However, no matter shall be referred to mediation if there is in effect a preliminary or final order of domestic violence entered pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.).

In matters involving domestic violence in which no order has been entered or in cases involving child abuse or sexual abuse, the custody or parenting time issues shall be referred to mediation provided that the issues of domestic violence, child abuse or sexual abuse shall not be mediated in the custody mediation process. The mediator or either party may petition the court for removal of the case from mediation based upon a determination of good cause.

(b) Conduct of Mediation. In addition to the general requirements of Rule 1:40-4, the parties shall be required to attend a mediation orientation program and may be required to attend an initial mediation session.

Mediation sessions shall be closed to the public. The mediator and the parties should consider whether it is appropriate to involve the child in the mediation process. The mediator or either party may terminate a mediation session in accordance with the provisions of Rule 1:40-4(f).

(c) Mediator Not to Act as Evaluator. The mediator may not subsequently act as an evaluator for any court-ordered report nor make any recommendation to the court respecting custody and parenting time.

Included below is the content of R. 1:40-4 for ready reference:

1:40-4. Mediation – General Rules

(a) Referral to Mediation. Except as otherwise provided by these rules, a Superior Court or Municipal Court judge may require the parties to attend a mediation session at any time following the filing of a complaint.

(b) Compensation and Payment of Mediators. Parties in Superior Court, except the Special Civil Part, assigned to mediation pursuant to this rule shall equally share the fees and expenses of the mediator on an ongoing basis, subject to court review and allocation to create equity. Any fee or expense of the mediator shall be waived in cases, as to those parties exempt, pursuant to Rule 1:13-2(a). A party may opt out of the mediation process after the mediator has expended three hours of service, which shall include preparation and the first mediation session, and which shall be at no cost to the parties. Fees shall be as determined by the mediator and the parties. Failure to pay the mediator may result in an order by the court to pay and imposing appropriate sanctions.

(c) Confidentiality. Except as otherwise provided by this rule and unless the parties otherwise consent, no disclosure made by a party during mediation shall be admitted as evidence against that party in any civil, criminal, or quasi- criminal proceeding. A party may, however, establish the substance of the disclosure in any such proceeding by independent evidence. A mediator has the duty to disclose to a proper authority information obtained at a mediation session on the reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act likely to result in death or serious bodily harm. No mediator may participate in any subsequent hearing or trial of the mediated matter or appear as witness or counsel for any person in the same or any related matter. A lawyer representing a client at a mediation session shall be governed by the provisions of RPC 1.6.

(d) Limitations on Service as a Mediator.

(1) Mediators shall be qualified and trained in accordance with the provisions of Rule 1:40-12.

(2) No elected official, or candidate for elected office, shall serve as a CDR mediator within the geographic boundary of the elected office.

(3) The approval of the Assignment Judge is required for service as a mediator by any of the following:
(A) appointed public officials;

(B) police or other law enforcement officers employed by the State or any local unit of government;

(C) employees of any court;

(D) government officials or employees whose duties involve regular contact with the court in which they serve; or

(E) elected officials, or candidates for elected office, who wish to serve outside the geographic boundaries of the elected office.

(4) The Assignment Judge shall also have the discretion to require prior review and approval of the Supreme Court of prospective mediators whose employment or position appears to the Assignment Judge to require such review and approval.

(e) Conduct of Mediation Proceedings. Mediation proceedings shall commence with an opening statement by the mediator describing the purpose and procedures of the process. Non-party witnesses may be heard in the discretion of the mediator, and other non-parties shall be permitted to attend only with the consent of the parties and the mediator. Multiple sessions may be scheduled. Attorneys and parties have an obligation to participate in the mediation process in good faith in accordance with program guidelines.

(f) Termination of Mediation.
(1) The mediator or a participant may terminate the session if

(A) there is an imbalance of power between the parties that the mediator cannot overcome,

(B) a party challenges the impartiality of the mediator,

(C) there is abusive behavior that the mediator cannot control, or

(D) a party continuously resists the mediation process or the mediator.

(2) The mediator shall terminate the session if (A) there is a failure of communication that seriously impedes effective discussion, (B) the mediator believes a party is under the influence of drugs or alcohol, or (C) the mediator believes continued mediation is inappropriate or inadvisable for any reason.

(g) Final Disposition. If the mediation results in the parties’ total or partial agreement, it shall be reduced to writing and a copy thereof furnished to each party. The agreement need not be filed with the court, but if formal proceedings have been stayed pending mediation, the mediator shall report to the court whether agreement has been reached. If an agreement is not reached, the matter shall be referred back to court for formal disposition.

5:8-1. Investigation Before Award (Continued)

During the mediation process, the parties shall not be required to participate in custody evaluations with any expert. The parties may, however, agree to do so.

The mediation process shall last no longer than two months from the date it commences or is ordered to commence, whichever is sooner. The court, on good cause shown, may extend the time period.

The date for conclusion of mediation shall be set forth in any Case Management Order(s).

If the mediation is not successful in resolving custody issues, the court may before final judgment or order require an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family and the financial ability of the party to pay alimony or support or both.

In other family actions the court may, if the public interest so requires, order such an investigation.

The court may continue any family action for the purpose of such investigation, but shall not withhold the granting of any temporary relief by way of alimony, support or pendente lite orders pertaining to parenting issues under R. 5:5-4 and R. 5:7-2 where the circumstances require.

Such investigation of the parties shall be conducted by the Family Division of the county of venue, notwithstanding that one of the parties may live in another county, and the Family Division shall file its report with the court no later than 45 days after its receipt of the judgment or order requiring the investigation, unless the court otherwise provides.

Such investigation of the parties shall be conducted by the probation office of the county of the home state of the child, notwithstanding that one of the parties may live in another country or state.

5:8-2. Direction for Periodic Reports

If an award of custody of minor children has been made, the court may in its discretion file a certified copy of its order or judgment with the probation office of the county or counties in which the child or children reside with a direction therein to such probation office to make periodic reports to the court as to the status of the custody.

It shall be the duty of counsel to file 2 copies of the order or judgment with the probation office within 2 days, together with information concerning the exact place of residence of the child or children.

Upon the filing of such report, the court may on its own motion and where it deems it necessary, reopen the case and schedule a formal hearing on proper notice to all parties.

A certified copy of a custody decree of another state filed with the Clerk of the Superior Court of this State shall be sent to the probation office of the county or counties in which the child or children reside.

5:8-3. Investigation After Award

The court may on its own motion when it deems it necessary or where an application is made by either party to modify the award or terms thereof, in its discretion require the investigation provided for in R. 5:8-1. The court may continue such application for the purpose of such investigation and report.

5:8-4. Filing of Reports

The written report of an investigation made pursuant to this rule shall be filed with the court, shall be furnished to the parties, and shall thereafter be filed in the office of the Chief Probation Officer.

The report shall be regarded as confidential, except as otherwise provided by rule or by court order.

The report shall be received as direct evidence of the facts contained therein which are within the personal knowledge of the probation officer who made the investigation and report, subject to cross-examination.

5:8-5. Custody and Parenting Time/Visitation Plans, Recital in Judgment or Order

(a) In any family action in which the parties cannot agree to a custody or parenting time/visitation arrangement, the parties must each submit a Custody and Parenting Time/Visitation Plan to the court no later than seventy-five (75) days after the last responsive pleading, which the court shall consider in awarding custody and fixing a parenting time or visitation schedule.

Contents of Plan. The Custody and Parenting Time/Visitation Plan shall include but shall not be limited to the following factors:
(1) Address of the parties.

(2) Employment of the parties.

(3) Type of custody requested with the reasons for selecting the type of custody.

(a) Joint legal custody with one parent having primary residential care.

(b) Joint physical custody.

(c) Sole custody to one parent, parenting time/visitation to the other.

(d) Other custodial arrangement.

(4) Specific schedule as to parenting time/visitation including, but not limited to, week nights, weekends, vacations, legal holidays, religious holidays, school vacations, birthdays and special occasions (family outings, extracurricular activities and religious services).

(5) Access to medical school records.

(6) Impact if there is to be a contemplated change of residence by a parent.

(7) Participation in making decisions regarding the child(ren).

(8) Any other pertinent information.

(b) The court shall set out in its order or judgment fully and specifically all terms and conditions relating to the award of custody and proper support for the children.

(c) Failure to comply with the provisions of the Custody and Parenting Time/Visitation Plan may result in the dismissal of the non-complying party’s pleadings or the imposition of other sanctions, or both. Dismissed pleadings shall be subject to reinstatement upon such conditions as the court may order.

5:8-6. Trial of Custody Issue

Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading.

(Personal Note: In all of my years of doing custody work, I have never once experienced or even heard of a custody hearing date being set any earlier than six months after the last responsive pleading, except in one particular County, which was then taking about three years to hold divorce trials.)

The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action.

As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child or children.

(Personal Note: In camera judicial interviews of children age seven or older, until quite recently, were mandatory if either the Judge or one of the parents desired that one be conducted. Now, whether or not an interview will be conducted is left entirely to the sound discretion of the Judge.)

In the absence of good cause, the decision to conduct an interview shall be made before trial.

(Personal Note: There was a time not too long ago, where Judges differed widely on when to convene the interview. Some conducted them very early in the case, some just before trial, and still others, following the conclusion of the trial but prior to deciding the parenting issues.)

If the court elects not to conduct an interview, it shall place its reasons on the record.

If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted.

A stenographic or recorded record shall be made of each interview in its entirety.

Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court.

Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody.

Any judgment or order pursuant to this hearing shall be treated as a final judgment or order for custody.


In all cases where custody or parenting time/visitation is an issue, the court may, on the application of either party or the child or children in a custody or parenting time/visitation dispute, or on its own motion, appoint counsel on behalf of the child or children.

Counsel shall be an attorney licensed to practice in the courts of the State of New Jersey and shall serve as the child’s lawyer.

The appointment of counsel should occur when the trial court concludes that a child’s best interest is not being sufficiently protected by the attorneys for the parties. Counsel may, on an interim basis or at the conclusion of the litigation, apply for an award of fees and costs with an appropriate affidavit of services, and the trial court shall award fees and costs, assessing same against either or both of the parties.


(a) Appointment. In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment.

The services rendered by a guardian ad litem shall be to the court on behalf of the child. A guardian ad litem may be appointed by the court on its own motion or on application of either or both of the parents.

The guardian ad litem shall file a written report with the court setting forth findings and recommendations and the basis thereof, and shall be available to testify and shall be subject to cross-examination thereon.

In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:
1. Interviewing the children and parties.

2. Interviewing other persons possessing relevant information.

3. Obtaining relevant documentary evidence.

4. Conferring with counsel for the parties.

5. Conferring with the court, on notice to counsel.

6. Obtaining the assistance of independent experts, on leave of court.

7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.

8. Such other matters as the guardian ad litem may request, on leave of court.

(b) Objection or Refusal of Appointment. A proposed guardian ad litem shall have the right to consent or to decline to serve as such, notice of such decision to be in writing to the court with copies to counsel. The parties shall have the right to object to the person appointed as guardian ad litem on good cause shown.

(c) Term. The term of the guardian ad litem shall be coextensive with the application pending before the court and shall end on the entry of a Judgment of Divorce or an Order terminating the application for which the appointment was made, unless continued by the court. The guardian ad litem shall have no obligation to file a notice of appeal from a Judgment or Order nor to participate in an appeal filed by a party.

(d) Fee. The hourly rate to be charged by the guardian ad litem shall be fixed in the initial appointing order and the guardian ad litem shall submit informational monthly statements to the parties. The court shall have the power and discretion to fix a retainer in the appointing order and to allocate final payment of the guardian ad litem fee between the parties. The guardian ad litem shall submit a certification of services at the conclusion of the matter, on notice to the parties, who will thereafter be afforded the right to respond prior to the court fixing the final fee.


In any case in which the welfare of a child is in issue, the court may, on application of any party or on its own motion, appoint a volunteer Court Appointed Special Advocate (CASA), who shall act on the court’s behalf to undertake certain activities in furtherance of the child’s interests, but who shall not supplant or interfere with the role either of counsel for child appointed pursuant to R. 5:8A or guardian ad litem appointed pursuant to R. 5:8B.

Any such CASA shall be a volunteer associated with a court-authorized or court-operated CASA program. The duties and activities of a CASA program and all of its volunteers shall be in accordance with guidelines established by the Administrative Director of the Courts.

In summary, when the parties cannot reach an agreement regarding the custody of children, the court determines the custodial arrangement that is in the best interests of the children. To make its determination of custody and visitation, the court hears testimony from both parties, any experts they want to present, and any other parties who have direct knowledge of the ability of each spouse to parent the children. The court may also interview the children themselves or appoint a guardian to represent their interests.

Disclaimer  *Privacy Policy   * ©2013 Romanowski Law Offices.