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

Why Is It Hard To Have Sole Custody After A New Jersey Family Court Has Already Granted Joint Legal Custody?

As a child custody lawyer I am well aware that it is extremely rare for a parent to be granted sole custody of the children during a divorce proceeding.  In my experience, I would estimate that at least 95% of cases in New Jersey result in joint legal custody.   The reason behind this is simple;. as long as both parents are fit and willing to accept custody, the courts almost always favor granting joint legal custody.  Therefore and again, sole custody is hardly ever ordered to one parent as both have a fundamental right to be “equal” parents.  With that in mind, it is quite difficult to have a joint custody order modified down the road so that a parent can obtain sole custody of the children. That was illustrated in the recent case of Stewart v. Willey.   

In the case the parties were never married, but had a son together who was born in July 2008. The father had been working with the US Air Force since February 2004 and was stationed at McGuire-Dix-Lakehurst, where he lived since August 2011. The mother lived with her mother in Pemberton, New Jersey, close to where the father was stationed.

In November 2008 while the father was overseas, the parties stopped seeing each other. Over a year later in June 2009 the father returned home. He regularly saw his son and continued to pay child support for him like he had always done. Months later in May 2010, the father went overseas again to Afghanistan for six months. Before leaving, he gave the mother a gift to give to their son on his birthday. It was a book containing his recorded voice to remind the child that his dad was never far away from him. However, the father claimed that the mother made fun of the gift on her Twitter page.

Also in May 2010 before the father was deployed, the son was diagnosed with a speech delay; however, the mother never tried to get him help, nor did she tell the father about the diagnosis. Additionally, while the child was enrolled in daycare, the teachers expressed their concerns about his speech delay to the mother, yet she still did not enroll him in speech therapy. Instead, she lied to the teachers and told them that the child was receiving speech therapy at home.

In October 2010 the father returned home. He continued to see his son and his relationship with the mother had improved. Yet, in August 2011 they decided to call it quits for good. On November 3, 2011 the parties entered into a consent order in which they agreed to joint legal custody of their son, with the mother as the primary residential parent. A parenting time schedule was not set in stone since the father did not know when he would have to go overseas again, but he vowed to visit with his son as often as he could.

As the months went on, the father learned that the mother was completely ignoring the child’s speech issue and not getting him the proper help that he needed. In April 2012, the father requested to take the child to see a new doctor, concerned that he might be autistic. Following an evaluation, the child was diagnosed with a “severe receptive and expressive language disorder that caused a decreased ability to appropriately verbalize his needs and thoughts.” The doctor recommended therapy, as it was the only way the child would get better. Since the mother failed to take the son for therapy the first few months, the father began to do it himself every week. 

Frustrated by the way the mother had been treating the child; the father filed a motion to modify the custody order so that he would have sole legal custody. He argued, among other things, that the mother was intentionally ignoring the child’s special needs and that a change needed to be implemented to consider the child’s best interests. Despite the father’s efforts, the trial court held that it would be in the child’s best interests that the parties continue to share joint legal custody; however, the court did award the father sole legal authority to address the child’s medical needs. The father appealed. On appeal, the father argued that the trial court erred in awarding joint legal custody and designating the mother as the primary residential parent because she was unwilling to cooperate and communicate with him about the child’s health, safety and well being.

The Appellate Division began its analysis by looking at the statutory factors a court will consider when making a best interest of the child custody determination. They include:


1. The parents' ability to agree and collaborate on matters related to the child;

2. The parents' willingness to accept custody and any history of unwillingness to allow parenting time (unless based on abuse);

3. The relationship of the child with his or her parent; 



4. The history of domestic violence, if any even exists;

5. The safety of the child;

6. The preference of the child when “of sufficient age and capacity” to make an intelligent decision;

7. The needs of the child;

8. The stability of the environment offered;

9. The quality and stability of the child's education;

10. The fitness of the parents;

11. The geographical proximity of the parents' houses;

12. The extent and quality of the time spent with the child prior to or after the divorce;

13. The parents' employment responsibilities; and

14. The age and number of children.

However, since the parties’ child had special needs, the Appellate Division also considered the following additional criteria:

1.     Each parent’s role in getting the initial diagnosis of the child’s condition and any delay caused by a parent in getting the diagnosis

2.     Both parent’s acknowledgement and acceptance of the diagnosis

3.     Each parent’s role in seeking therapy options for the child

4.     Both parent’s ability to reinforce daily recommended behavioral interventions

5.     Each parent’s history of becoming educated on autism    

6.     Each parent’s willingness to be an advocate for the child

7.     Each parent’s ability to cope with the stress associated with raising an autistic child

8.     Both parent’s appreciation of the importance of seeking early help for the child

9.     The quality of the special education the child will receive while with both of the parents

After considering the facts presented, the New Jersey Appellate Division affirmed the findings of the trial court. It held that although the mother was not the initiator to seek help for the child, it would still be in his best interest to have his mother around to participate and influence major decisions. Furthermore, the Appellate Division reiterated the fact that the trial court granted the father sole responsibility for making health related decisions for the child since he had proven to take an active role since the diagnosis. This was the court’s way of accounting for the area in which the mother was deficient.

The main takeaway from the case is that it is extremely tough to have a joint custody order modified so that one parent has sole custody. If you or a loved one is in a difficult situation like the one described, do not hesitate to contact my office to discuss.