New Jersey Child Custody Law
Custody disputes can be both expensive and emotionally draining. In 1992, the appellate division court even hinted at the judiciary feeling somewhat uncomfortable with deciding custody
Specifically, in Tahan v. Duquette, the court wrote the following opinion, which is regularly cited in other cases.
We urge the parties to understand that courts in any jurisdiction
are poor places to resolve such fundamental relational problems
as child custody. Rules of law and procedural strictures are no
substitute for personal choices in so intensely personal an issue.
Parents who have divorced are frequently unable to communicate constructively on issues of importance; so they look to the
legal system to resolve their problems. But no stranger in a judicial robe, however able and well-motivated he or she may be,
is equipped to make a decision as valid as the parents working
together might make.
There are few if any elements of a divorce that are more important than protecting the best interests of the parties’ children. Likewise, there are few issues that will become as contentious as
a custody dispute.
NEW JERSEY CHILD CUSTODY: BEST INTERESTS
OF THE CHILDREN STANDARD
The analysis of most child-custody disputes in New Jersey starts
and ends with a simple but hard to define standard—the best interests of the child. These may include the following and more.
• Where will the child receive the best education?
• Where will the child be safest?
• Which party can provide “better” living conditions?
• Which party is more nurturing?
• Where will the child have the best chance to excel?
New Jersey child-custody decisions
should be made with the “best interests of the parties’ children” in
mind. But let’s backtrack for just a
second and define child custody in
TYPES OF CUSTODY
Under New Jersey Law, there are
two basic types of child custody—
legal and physical. Legal custody
includes the right to make important decisions regarding the children such as important decisions involving their health, religion,
upbringing, and education.
Physical custody assigns with which parent the children will reside the majority of the time and thus who will have the day-to-day care of the children.
New Jersey law favors joint legal custody, whereas joint
physical custody is generally the more contested issue. In recent
years, disputes about joint physical custody have increased, and
some judges start with the baseline of fifty-fifty shared joint and
legal custody and ask why that ratio should change.
Often, the noncustodial party will be granted a significant
amount of parenting time. The amount of overnight parenting
time also plays a role in determining child-support awards.
GENDER AND CUSTODY
New Jersey has largely become gender blind when determining
custody (except perhaps when a child is very young). That said,
for a variety of reasons, women are still more often granted
physical custody of the children. It should be noted, however,
that the number of fathers being granted primary physical custody of their children appears to be increasing. As noted above,
joint custody is increasingly being expected and awarded except
in exceptional circumstances.
MODIFICATION OF NEW JERSEY
New Jersey child-custody decisions are always subject to review
and modification based on the best interests of the children. In
most cases, divorcing parties consent to custody agreements in
conjunction with their divorce proceedings. Until a child is an
adult, however, custody issues may persist, and they can be revisited upon either party’s request.
LITIGATION OF CHILD-CUSTODY ISSUES
IN NEW JERSEY
If the parties cannot resolve their custody issues, the matter will
likely have to be litigated. As part of the child-support litigation,
there will likely be outside experts called in to assist the court
in determining what living arrangements are in the best interests of the children. Issues of parental fitness will play a larger
role than the preference of the child particularly if the child is
younger as I mentioned earlier.
That phrase in the block quote above “But no
stranger in a judicial robe …” means that the court will likely
push both parties toward mediation. New Jersey child-custody
cases are highly fact sensitive. As such, the effective and aggressive use of all appropriate discovery techniques will be considered in contested or potentially contested custody disputes.
NEWBURGH V. ARRIGO FACTORS
One particular case, the Newburgh v. Arrigo case, provided certain factors for courts to consider when requiring one or both
parents to contribute to their child’s college costs:
- Whether the parent, if still living with the child, would
have contributed toward the costs of the requested
- The effect of the background, values, and goals of the
parent on the reasonableness of the expectation of the
child for higher education.
- The amount of the contribution needed for the child to
pursue higher education.
- The ability of the parent to pay that cost.
An Overview of Relevant New Jersey Divorce Law
- The relationship of the requested contribution to the
kind of school or course of study the child is seeking.
- The parents’ financial resources.
- The commitment to and the aptitude of the child for
- The child’s financial resources including assets owned
or held in custodianship or trust.
- The ability of the child to earn income during the school
year or on vacation.
- The availability of financial aid such as college grants
- The child’s relationship to the paying parent including
mutual affection and shared goals as well as responsiveness to parental advice and guidance.
- The relationship of the education requested to any prior
training and to the child’s long-range goals.
As you can see, there is thus no bright-line rule requiring or
not requiring contribution but rather a number of factors all
which must be weighed by the courts when it comes to determining what might be fair. This situation creates the somewhat
interesting scenario in which divorcing couples in New Jersey
might be required to contribute to their children’s college costs
while couples who are not divorced aren’t required to do so.
Some have argued that that isn’t fair in that it treats one class of
citizens different from another, and that might trigger constitutional issues.
The factors in Newburgh v. Arrigo have been around and
effective for well over thirty years now, and that can prompt
courts to require payment for or at least contributions to law
school, medical school, or other professional school costs particularly from parents with big net worths.
CONTRIBUTING TO A CHILD’S GAP YEAR
I’ve also seen courts require payments for what’s called a child’s
gap year, a year in between high school and college or a year
between this or that year of college meant as a time for travel or
volunteering here or there. The courts don’t consider this as a
sign of emancipation as young people taking gap years generally
intend to continue their education.
EMANCIPATION AND CHILD COSTS
Other difficult factors for you to consider may be how you can
prove a child is emancipated because he or she is not pursuing
an education full time or in good faith and is thus no longer entitled to child support. Some clients have told me that their children are failing most classes, are taking six years to complete a
four-year degree, and so on. Those cases can become difficult
to prove particularly if the noncustodial parent has a strained
relationship with his or her child, and it makes for interesting
emancipation arguments in court.
PARENTAL STRAIN AND COLLEGE COSTS
Finally, the issue of parent/child strain is considered in the
Newburgh v. Arrigo factors and is an important concept. It is difficult to imagine paying for a child’s education when that child
won’t even speak to you, but if courts determine you are more to
blame for such strain than your adult child, you might be forced
to do so anyway