Parents in a dissolution or divorce action come to the Court on equal footing. N.J.S.A. 9:2-4 sets forth factors that the Court is to consider in making an award of custody and/or parenting time, as it is public policy to assure minor children frequent and continuing contact with both parents who have separated or dissolved their relationship.
Types of custody including: Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include: (1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child’s health, education and general welfare.
We also utilized joint legal custody, meaning the “authority and responsibility for making ‘major’ decisions regarding the child’s welfare,” is often shared post-divorce by both parents. Id.[1] at 487,432 A.2d 63. Joint legal custody provides rights and responsibilities to custodial parents, but it also confers rights with less significant responsibilities to non-custodial parents.
On the other hand, “joint physical custody” means joint “responsibility for ‘minor’ day-to-day decisions” and the exertion of continuous physical custody by both parents over a child for significant periods of time. The Court in Pascale v. Pascale, 140 N.J. 583, 596-97 (1995) held that numerous “parenting times” with a child does not constitute joint physical custody; to constitute joint custody, each parent must exert joint legal and physical custody over the child. However, we see that the Courts lean toward joint custody often without defining joint legal custody or joint physical custody.
Sole custody to one parent with appropriate parenting time for the noncustodial parent; or
Any other custody arrangement as the court may determine to be in the best interests of the child.
The court considers: (1) the parents’ ability to agree, communicate and cooperate in matters relating to the child; (2) the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; (3) the history of domestic violence, if any; (4) the safety of the child and the safety of either parent from physical abuse by the other parent; (5) the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; (6) the needs of the child; the stability of the home environment offered; (7) the quality and continuity of the child’s education; (8) the fitness of the parents; (9) the geographical proximity of the parents’ homes; (10) the extent and quality of the time spent with the child prior to or subsequent to the separation; (11) the parents’ employment responsibilities; and (12) the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.
In agreements to define a parenting plan, the issue of who is the “parent of primary residence” (PPR) and who is the “parent of alternate residence” (PAR) are often the contention in the parenting plan. The PPR and the PAR are defined as follows:
- Parent of Primary Residence (PPR) – The parent with whom the child spends most of his or her time overnight. The primary residence is the home where the child resides for more than 50% of the overnights annually. If the time spent with each parent is equal (50% of overnights each), the PPR is the parent with whom the child resides while attending school. Overnight means the major of a 24-hour day (i.e., more than 12 hours).
- Parent of Alternate Residence (PAR) – This is the parent with whom the child resides when not living in the primary residence.
Remember that either the PPR or the PAR may be the obligor of the support order depending on income and the time spent with the child. The designation of PPR and PAR is not related to the gender of either parent or the legal designation of custodial parent.
The parent who is designated as the parent of primary residence is responsible for the day to day decisions concerning the children, unless of course the parents agree otherwise in their parenting plan set forth in their Marital Settlement Agreement. “It is assumed that controlled expenses for the child are incurred only by the PPR since, generally, that parent manages the day-to-day needs of and expenditures for the child.” Child Support Guidelines, Pressler & Verniero, Appendix IX-A.14(b) to R. 5:6A.
The Court will consider the status quo of the parties prior to the separation. “Until the court determines the final custody of the minor child and unless the parties agree otherwise, the court shall determine temporary custody based upon the best interests of the child with due regard to the caretaking arrangement that previously existed.” N.J.S.A. 9:2-3.
Parents should be cautioned that domestic violence or a parent’s failure to communicate could detrimentally affect their desire to share joint physical custody of their child. In Nufrio v. Nufrio, 341 N.J. Super. 548 (App. Div. 2001) the Appellate Division upheld the trial court’s award of sole custody of the minor child to the plaintiff-mother, irrespective of the extensive parenting time awarded to the defendant-father.
[T]he findings of the judge make it clear that any form of ‘joint custody or shared decision making will be detrimental to the parties’ child. The concern that the defendant would use the label of ‘joint legal custody’ as a disguised attempt to harass plaintiff through repeated applications to the court ha support in the record. Such a situation would clearly be detrimental to the best interest of the child. Id. at 555.
N.J.S.A. 2C:25-29(b)(11) provides that in a hearing for a Final Restraining Order, the Court may issue an order “awarding temporary custody of a minor child. The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.”
A party showing a change in circumstances may move before the court to modify the initial custody order under the domestic violence proceeding.
[T]he presumption under N.J.S.A. 2C:25-29(b)(11) fulfills its function by influencing the determination of custody in the initial FRO proceeding. As set forth above, any subsequent change in custody requires a prima facie showing of “a change in circumstances warranting revision of custody or parenting time in the best interests of the child as defined in N.J.S.A. 9:2-4,” N.D., supra, 417 N.J. Super. at 112, and then proof at a hearing that the child’s “best interests are served by modification of the existing custody order,” Faucett, supra, 411 N.J. Super. at 111. If those showings are made, even after consideration of “the history of domestic violence,” N.J.S.A. 9:2-4, re-application of the presumption to change the result would dictate a decision that is not in the best interest of the child. R.K. v. F.K., 437 N.J. Super. 58, 65-66 (App. Div. 2014).
Parents may not remove a child from the State of New Jersey without the consent of the other parent or by a Court Order. N.J.S.A. 9:2-2. To remove a child form the State of New Jersey, over the objection of the other parent, a party must demonstrate that the interstate move is in the child’s best interest. Recently, the Court in Bisbing v. Bisbing, 2017 N.J. LEXIS 830, at *41-43 (Aug. 8, 2017).Bisbing v. Bisbing, held that a best interest analysis is to be applied in a removal application, thereby departing from the two prong standard under Baures v. Lewis, 167 N.J. 91 (2001), wherein the parent of primary residence needed only to demonstrate a good faith reason for the interstate move and that the interstate move is not inimical to the child’s best interest. Baures, 167 N.J. at 118-120. Courts were granting applications of the parent of primary residence to relocate out of the State of New Jersey without a plenary hearing. The Bisbing Court turned from affording the parenting of primary residence this weight:
[T]he threshold determination mandated by Baures may engender unnecessary disputes between parents over the designation of the parent of primary residence and accusations that a parent sought that designation in bad faith, anticipating a relocation. Our custody statute clearly envisions that a custody arrangement will serve a paramount purpose: the promotion of the child’s best interests. N.J.S.A. 9:2-4. The parties and the court should select the parent of primary residence based on that parent’s capacity to meet the needs of the child. Ibid. If a designation as the parent of primary residence will determine the result of a relocation dispute, parties may be motivated to contest that designation even if one parent is clearly in a better position to serve that primary role. As this case illustrates, the advantage afforded to a parent of primary residence in a relocation conflict may raise divisive accusations of bad faith after custody negotiations conclude…In short, by tethering the relocation standard to one party’s status as the parent of primary residence, the Baures standard may generate unnecessary disputes regarding that designation.
Bisbing v. Bisbing, 2017 N.J. LEXIS 830, at *39-40 (Aug. 8, 2017)
[1] Beck v. Beck, 86 N.J. 480, 487 (1995)