When you are involved in a divorce proceeding and there are minor children in the home, you’ll need to come to an agreement about who will have custody and what visitation will look like. As a parent, you want what’s best for your children, but you also want to play a meaningful role in their growth and development.

Physical Custody vs. Legal Custody

The first thing you need to understand is that the law makes a distinction between physical custody and legal custody. Physical custody refers to where the child resides most of the time, i.e., where the child would consider “home” to be. In most instances, the court will grant primary custody to one of the parents and allow visitation with the other parent. In determining which parent will have primary custody, the court will give priority to “the best interests of the child.” (See our discussion below).

Legal custody, on the other hand, refers to each parent’s right to participate in the decision-making process with respect to things like health, education and religious training. As a general rule, the courts prefer to grant joint legal custody, so that both parents are involved.

The Best Interests of the Child

When making decisions that have an impact on minor children, the courts in New Jersey are bound to promote the “best interests of the child.” As a general rule, the “best interests of the children” are served by encouraging regular contact with both parents. The court will also look at specific criteria, including:

• The age, gender, and physical and mental health of the child
• The mental and physical health of both parents, including the ability to parent, as well as any allegations of domestic violence or abuse
• The respective lifestyles of both parents, including alcohol, tobacco and drug use or inappropriate exposure to sexual matters
• The emotional bond the child has with each parent
• The ability of the parents respectively to provide for the child’s financial, physical and emotional needs
• The lifestyle and routines to which the child has become accustomed
• The impact that changing the child’s residency would have
• The preference of the child, if the child has reached a certain age, typically 12 years of age

Contact Attorney David M. Lipshutz

We will only take your case if we know we can help. For an appointment, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9 am and 5 pm.