Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

May I Obtain Sole Custody Of My Child In New Jersey?

In my vast experience as a child custody lawyer in East Brunswick, New Jersey, I am well aware that only in rare cases will a judge give one parent sole legal custody. The attorneys at my law firm all understand the factors that a judge of a New Jersey Family Court shall consider include the ability of the parents to communicate, cooperate, and agree in matters concerning the child; the willingness of the parents’ to accept custody; the child’s relationship and interaction between the child and his or her parents or siblings; any history of domestic violence; the child’s preference, as long as that child is of sufficient age and capacity to reason to make an intelligent decision; the child’s needs; the stability of the offered home environment; of the quality of education; the parents’ fitness; the quality and extent of the child’s time spent with the parent before separation; the employment responsibilities of the parents; and the age and amount of children. 

The M.I. v. J.I., is one of those cases where the court believed that facts of the case and actions of one parent during litigation warranted the award of sole legal custody to one parent. M.I. and J.I. got married in 1999 and had two children together. In 2010, J.I. filed a complaint for divorce, which was followed by over two years of litigation. The New Jersey Appellate Division called the trial testimony a “sad tale of two ‘adults’ who refused to put aside their hatred and animosity for each other, even though the best interests of their children was at stake.

On February 11, 2014, a Family Part judge entered a judgment of divorce that granted J.I. sole legal custody of the kids. The award was subject to an advance written notice to M.I. for every legal custody issue that may arise, so M.I. had enough time to get judicial intervention. The judgment of divorce also established that each parent would share physical custody with both parents having equal time with the children, during a two-week period with a pickup and drop off schedule. J.I. was then designated as the parent of primary residence, and awarded the right to pick the schools for the kids, upon notice to M.I of course. 

Sole custody on the other hand is comprised of only legal custody and physical custody, with no combination option, unlike joint custody. A parent with legal custody has the sole right to make decisions about long term plans, education, religious upbringing, discipline, medical care, and any other decision that may affect the child’s welfare. A parent with physical custody lives with the child and has the right to make decisions regarding the child’s everyday needs. In sole custody only one parent has both legal and physical custody, and the child only has one primary home. 

Joint custody is comprised of three different subcategories, including: joint legal custody, shared physical custody, and a combination of the two. Joint legal custody is an arrangement where both parents share in the care of the child, and make decisions about the child’s welfare together. Shared physical custody is where the child has two homes, and spends at least 35% of his or her time with the other parent. Parents can also mutually agree to a special joint custody arrangement that is a combination of joint legal and shared physical custody. In a joint custody arrangement, it is vital for both parents to communicate, and make decisions that might affect the child’s welfare, together. 

Getting sole legal custody in New Jersey is quite rare, as Family Part judges find joint legal custody to be the optimal custody arrangement. Sole legal custody is reserved for rare cases in which the court determines that sole custody is in the best interest of the children. The child’s best interest is also the paramount factor in and determination of custody award. 

M.I. appealed the judgment of divorce and argued that the judge did not apply a best interest of the child analysis in determining the custody award. The New Jersey Appellate Division stated that when a Family Part judge determines what custody arrangement is in the best interest of the child, he or she must apply the factors enumerated in New Jersey Statute 9:2-4.  The New Jersey Appellate Division explained that the trial judge’s written opinion started with over three pages referencing testimony that demonstrated the belligerent, demeaning, and offensive conduct each parent showed each other. The Family Part judge made mention of M.I.’s refusal to follow court orders, and J.I.’s false testimony given under oath. Because of this obvious inability to cooperate and communicate between the parents, the Family Part judge determined that in this case joint custody simply would not work. Even though the judge stated that joint legal custody is the optimum and desire result in most cases, in this case, unless one parent had sole legal custody, the Court was afraid that it would have to intervene for each and every little decision that related to the upbringing and care of the children. Therefore, the judge awarded sole legal custody to J.I. because he showed better ability and propensity to follow court orders. M.I. on the other hand defied court orders regularly and consistently. The judge explained that she had not abided by orders about dogs being in the home, joint decision making, and regularly make unilateral decisions with major impacts like education and medical issues. Moreover, her judgment on numerous occasions was suspect, like allowing babysitters that were basically strangers to sleep in the same bed as the children, allowing her older daughter to ride on a motorcycle, leaving the children alone to get burnt by a rice steamer, or fall out of a stroller or changing table. 

The judge also noted that M.I. had also accused defendant of hitting the kids, which was an unsubstantiated claim of abuse, and lied to the police. In the end the Court found that J.I. would be more likely to follow court orders about parenting time and custody because he showed a much greater likelihood to do so during the litigation of the case, and would be more likely to tell M.I. about what was happening in the children’s lives. 

As such, the New Jersey Appellate Division was not convinced by M.I.’s argument that the Family Part judge’s factual findings were not supported by the record. The appellate panel explained that they give broad deference to fact finding made by Family Part judges because of the court’s special jurisdiction and the judges’ special expertise in family matters. In many divorce actions the evidence is mostly testimonial and requires determinations of credibility, and so deference is even the more appropriate. As such, the New Jersey Appellate Division will only reverse when a mistake had to have been made because the Family Part’s findings of fact are so clearly inconsistent with or unsupported by the reasonably credible evidence that they offend the notions of justice. 

The New Jersey Appellate Division reviewed the record and was satisfied that the Family Part judge’s findings of fact were supported by substantial and credible evidence. However, M.I. also argued that the Family Part judge committed error by resting the custody decision on a determination of who would be more likely to abide by court orders instead of the best interest of the child standard. The New Jersey Appellate Division also agreed that the Family Part judge did not apply the proper best interest of the child standard. Still, the appellate panel noted that they could infer that the judge determined that J.I.’s greater likely hood with complying with court orders would benefit the children’s well-being. As such the New Jersey Appellate Division ordered a remand, and ordered that the judge must explain how the best interest of the children were being served by granting sole legal custody to J.I.

Please contact my office is you are facing a child custody situation.