Visitation and Parenting Time Law in New Jersey
Parenting time—formerly referred to as visitation—addresses
the specifics of a custody order or agreement. The parties’ lawyers will do their best to broker a deal or fight for the parenting
time sought by their clients. Likewise, judges will make a call
if they have to. But in my opinion, the parties themselves are
best equipped to work out the most reasonable parenting-time
arrangement on a day-to-day and hour-to-hour basis. After all,
they will be the ones implementing the parenting-time arrangement into the fabric of their daily lives.
Accordingly, the parties should recognize and work together to protect the best interests of their children. Ideally, they will
push aside their differences and work toward a fair resolution of
the parenting-time issue. As stated above, New Jersey parenting-time law itself is grounded in the belief that no “stranger in
a black robe” is better equipped to resolve such matters than the
BASIC CONCEPTS OF NEW JERSEY
Custody will determine which party is the parent of primary
residence (physical custody) and which party is the parent of
alternate residence. New Jersey law generally favors liberal
parenting time with the parent of alternate residence so that
the children will maintain a post-divorce relationship with
Exceptions to this general rule do exist such as when parenting time would not be in the best interests of the children.
One such instance is when the parent of primary residence has
a history of abuse or domestic violence. Even then, however, the
courts generally favor restrictions on parenting time (such as
requiring that parenting time be supervised) to denying either
party parenting time altogether.
One of the seminal New Jersey parenting time cases is
McCown v. McCown. The ruling stated that children have a
right to a loving relationship with both parents. The parent of
primary residence generally has a responsibility to foster and
develop the relationship between the children and their other
parent. The parent of primary residence may therefore be sanctioned if he or she attempts to alienate the children from their
Such sanctions can include up to the loss of primary custody.
Parenting-time rights are generally guaranteed only to the
actual parents or guardians. Outside parties generally have no
legal right to parenting time even when those outside parties are
nonguardian grandparents. Parenting time is not contingent on
the payment of child support.
In New Jersey, parenting-time arrangements may be determined by the agreement of the parties or by the court. Either
way, this issue has to be decided based on the best interests of
Most courts and family law attorneys will look to a traditional parenting-time arrangement to provide a basic framework
for parenting time. Negotiations will then focus on modifying
the agreement to reflect the wishes of the parties. The parent
of alternate residence is generally given alternate weekends for
3 277 N.J.Super. 213, 218 (App. Div. 1994).
An Overview of Relevant New Jersey Divorce Law
overnights along with an evening or two each week. Fights over
specific holidays can oftentimes hold up an otherwise done deal.
Holidays are generally alternated between both parents
based on even and odd years. The parties can enter into an
agreement for parenting time/custody as part of the Marital
Settlement Agreement or as an independent Consent Order
prior to the ultimate disposition of the case. This agreement
would then be embodied and/or incorporated into the Marital
MODIFYING PARENTING-TIME AGREEMENTS
Either party may at essentially any time move for a modification
of a parenting-time arrangement. If the parties cannot agree
on a post-judgment modification, the party seeking the modification will often file a motion showing that there has been a
significant change in circumstances and that the modification
would be in the best interests of the children.
Parenting-time issues can be one of the most contentious
parts of a divorce. Luckily, in many instances, the parties can
work together to create an amicable resolution of their issues.
WHO DECIDES THE CHILD’S RELIGIOUS
In a New Jersey divorce and particularly one with young children, the following questions may arise.
• Should the children be raised in a particular faith or
• If yes, how active should the children be in that religion?
• Should the children attend religious education?
• If so, what if that interferes with the parenting schedule?
For example, in a divorce in which the mother is Jewish and the
father is Catholic, if the parents agree to raise the child Catholic,
should the mother be required to take the children to CCD
classes during her parenting time? Should the parents agree to
split the costs of religious education? Should the mother in the
above example be required to help pay for her children’s holy
communion luncheon or confirmation dinner?
How often should the children attend religious ceremonies?
For instance, should a parent be required to attend church or
synagogue with the children even if they are not of the same
If the parents agree on raising a child in a specific faith, to
what extent do they agree or not regarding parochial or private
school in that religion versus public school?
THE ROLE OF COURTS IN DETERMINING NEW
JERSEY DIVORCE RELIGIOUS CHOICE ISSUES
In New Jersey, most parties have joint legal custody at the time
that they divorce; both are supposed to have a say in determining important issues of education, religion, health, and the like
regarding their children. This can present a unique challenge
when a stalemate arises between the parties.
For instance, in the above classic example of a Jewish mother and a Catholic father, they may have a newborn and have not
decided in which faith their child will be raised. If they decide to
divorce, that issue can rise to the surface. If they can’t agree, the
court will be called upon to do so, but the court abhors nothing
more than deciding such religious questions. First Amendment
and other constitutional issues are at play, judges are loath to
make any decision that might make it look as if they are preferring one religion to another, and the court recognizes that for any type of plan to work, it will likely require buy-in by both parents.
Courts may punt this issue entirely. They can state that the
children shall be raised in both faiths, or they might take no
position on this issue at all. If the parties have a parenting coordinator, perhaps he or she might assist them, and mediation
may help, but if not, what can be done?
Some guidelines that parties may wish to consider in such
an instance may include these.
• how religious or not each party is
• the religious backgrounds of the parents’ families
• the importance of the issue to each party
• which parent will be more committed to the responsibilities associated with raising children in his or her
• what steps have already been taken to raise the child in
a specific faith
• if other children of the relationship have been baptized
or otherwise been raised in a specific faith
• to what extent both parties are acting in good faith in
raising such issues
• to what extent the parenting plan allows for the children to be raised in a specific faith; if there is a language component to a specific religion or faith, how the parenting schedule will allow the children to learn the
language to meet religious requirements
It will ultimately be very much up to the parties in such circumstances to put aside any animosity they may have toward
each other and cooperate in the best interests of their children
to reach a conclusion in this matter.
WHO PROVIDES HEALTH INSURANCE AND
UNREIMBURSED MEDICAL EXPENSES
FOR THE CHILDREN?
During a marriage, it is common for one party to provide health
insurance for the whole family. For instance, my wife works for
a school district, and her policy covers our whole family.
In divorces, courts strive to preserve the status quo of the
marriage, so prior to the divorce being finalized, the party who
has always provided health insurance should continue to do so.
That party should also pay out-of-pocket expenses following any pendente lite (court orders in place during pendency of
divorce proceedings) orders.
WHAT ABOUT AFTER A DIVORCE IS FINALIZED?
In New Jersey, the Divorce Agreement should set forth all the
obligations of both parties concerning who pays for ongoing
health insurance and out-of-pocket expenses.
HEALTH INSURANCE COVERAGE FOR CHILDREN
The Divorce Agreement should set forth which parent will
maintain health insurance for the children. The cost of this and
any out-of-pocket costs should be figured into the amount of
child support one parent pays. The agreement may establish
what is to happen if one parent loses his or her health insurance. If neither party has health insurance, the agreement may
set forth the actions they are to take to obtain health insurance
and the division of any costs as applicable.
UNREIMBURSED MEDICAL EXPENSES
The Divorce Agreement should also set forth how unreimbursed
medical expenses will be handled. Under general New Jersey
law, the parent of primary residence is responsible for the first
$250 each year per child, and the parties thereafter will divide
any additional out-of-pocket costs such as copays, for braces and
dental work, or other out-of-network or out-of-pocket expenses.
The parties may agree to divide the costs beyond the first
$250 each year per child evenly or in some other ratio depending on their incomes. The parties may also include language in
the Divorce Agreement that handles additional details; they
could agree that they’ll both try to stay in-network except in
emergencies, that they’ll keep each other informed about any
medical issues, that proof of out-of-pocket expenses will be
shown in a timely fashion, and so on.
The above issues are fact sensitive and should be considered
as part of any divorce settlement as applicable. As medical expenses become an increasingly important consideration, those
who are contemplating, negotiating, or finalizing a New Jersey
divorce should keep these issues in mind.