Legal Blog

Divorce in New Jersey: Custody

Originally posted on 2/26/2019, no content changes.

There are cases in which one of the parents has abandoned their parental responsibilities, suffers from addictions, suffers from a significant mental or emotional condition, or is otherwise unfit to assume either physical or legal custody. In such cases, the specific facts must be carefully analyzed. In such circumstances, one party may have limited parental rights, supervised visitation may be required, or a “Parenting Coordinator” may be utilized.

Supervised visitation means that a person cannot be in the presence of their child without appropriate adult supervision. A Parenting Coordinator is utilized to facilitate decision-making when the parents are incapable of doing so themselves. These alternatives should only be used if and when absolutely necessary and only as a last resort.

Absent such extenuating circumstances, New Jersey law regarding custody of children can be summarized in the simple principle that the parenting arrangement must be in “the best interest of the child.” Notice that the operative words are in the best interest of the child, not necessarily in the best interest of either or both parents.

Whatever the parenting arrangement, it must address two basic areas of responsibility: physical and legal custody. Physical custody determines where the child will reside, how many days with each parent and at what times: weekdays, weekends, holidays and vacation periods.

Legal custody involves decision-making regarding the child. Decisions such as elective medical care, religious training, schooling decisions and extra-curricular activities are the typical discretionary decisions which are a part of legal custody.

In order to determine what parenting arrangement is “in the best interest of the children,” the Court must apply specific statutory criteria.

Those criteria include:

  1. a parent’s ability to agree, communicate and cooperate in matters relating to the child;
  2. a parent’s willingness to accept custody of the child;
  3. any unwillingness on the part of either party to allow visitation or contact with the child with the other parent;
  4. the relationship of the child with the parent;
  5. any history of domestic violence;
  6. the safety of the child;
  7. the preference of the child when the child is of sufficient age so as to form an intelligent decision;
  8. the needs of the child;
  9. the stability of the home environments of the respective parents;
  10. the quality and continuity of the child’s education;
  11. the fitness of the parent;
  12. the geographic proximity of the parent’s home;
  13. the extent and quality of time that each parent spent with the child either prior to or subsequent to this separation of the parties;
  14. each parent’s employment  responsibilities;
  15. the age and number of children.

In most cases, the primary objective should be to maintain a continuing relationship between each parent and the child. The Court will attempt to craft a physical custody arrangement whereby each of the parents will enjoy meaningful parenting time with the child at regular intervals and a legal custody, which allows both of them to participate in the decision making responsibility for the child.

There are many books discussing the impact of divorce upon children, and the theories espoused in such books are as numerous as the books themselves. However, there is one common theme in almost all of the reliable literature: the greater the conflict between the parents, the more the negative impact of the divorce will be upon the child.

Psychological studies show that there are certain types of parental behavior which almost always adversely affect children. Such behavior should be recognized by both parents, and each should avoid falling into such behavioral patterns regardless of their reason for doing so.

Such behaviors include:

  • Denigrating or criticizing of your spouse in the presence of your children;
  • Seeking to make your child your ally or confidant;
  • Involving your child in discussions regarding your divorce;
  • Blaming your spouse for your own shortcomings. If you are unhappy, frustrated or depressed, seek competent psychological counseling; do not tell your child that you would be fine if it were not for your spouse or your spouse’s conduct;
  • Engaging in verbal confrontation with your spouse in the presence of your children;
  • Any physical confrontation in the presence of the children;
  • Using your child as a messenger between you and your spouse.


For more information on this topic, please contact Megan Smith at

ABOUT MEGAN SMITH | 267.338.1378

Megan E. Smith devotes her practice to matrimonial, divorce, and family law, and is a trained collaborative lawyer and divorce mediator. She works with clients in all areas of matrimonial and family law, including the developing area of LGBT law as it relates to children and families. Her practice is concentrated in divorce, dissolution of civil unions, termination of domestic partnerships, custody, parenting time, child support, alimony, equitable distribution and pre-nuptial planning as well as related post-judgment issues, such as emancipation, support enforcement, and implementation of settlement agreements.

In 2008-2015, Ms. Smith has been a co-chair and speaker at the New Jersey Association for Justice annual convention in Atlantic City. Ms. Smith was recognized by Super Lawyers as a Rising Star in 2016 and a Super Lawyer 2017-2018. She was also recognized as an Awesome Attorney in 2015, 2016 and 2017 by South Jersey Magazine.