The custody arrangement for minor children is often the most important issue in a divorce. There are, of course, cases in which one of the parents has abandoned their parental responsibilities, suffers from various addictions, suffers from a significant mental or emotional condition or are otherwise unfit to assume either physical or legal custody. In such cases, the specific facts must be carefully analyzed, and it may be that one party should have limited parental rights, supervised visitation or that the circumstances may even require a Parenting Coordinator.
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 be used only when absolutely necessary and only as solutions of 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 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:
(a) a parent’s ability to agree, communicate and cooperate in matters relating to the child;
(b) a parent’s willingness to accept custody of the child;
(c) any unwillingness on the part of either party to allow visitation or contact with the child with
the other parent;
(d) the relationship of the child with the parent;
(e) any history of domestic violence;
(f) the safety of the child;
(g) the preference of the child, when the child is of sufficient age so as to form an intelligent
(h) the needs of the child;
(i) the stability of the home environments of the respective parents;
(j) the quality and continuity of the child’s education;
(k) the fitness of the parent;
(l) the geographic proximity of the parents’ home;
(m) the extent and quality of time that each parent spent with the child either prior to or
subsequent to this separation of the parties;
(n) each parent’s employment responsibilities;
(o) the age and number of children.
In most cases, the Courts make every effort 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 the 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 behavior includes:
• 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 any decision making regarding your divorce;
• Engaging in verbal or physical confrontation with your spouse in the presence of your children;
• Using your child as messenger between you and your spouse.
It is very often extremely difficult to fully remove the children from the emotions, hard feelings and, sometimes, the animosity which develop between the parents during a divorce. Short sighted parents often take misguided comfort in the fact that their children are maintaining a better relationship with them than with their estranged spouse.
It is, to some degree, understandable that a parent who is experiencing the loss of their spouse and the end of their marriage, takes some solace in the allegiance of their children. Expert after expert, text after text and experience after experience, however, have shown that the involvement of the children in the emotional aspects of their parent’s divorce seldom inures to the long term benefit of the children or their relationship with either parent. The children, no matter what their age, should be assured that the divorce is not their fault and should be told, by actions and example, that they are free to maintain a relationship with both parents. They should not be made to feel that showing love or loyalty to one parent is a betrayal of the other and they should not be made to feel that the showing of love to the parent is necessarily an endorsement of that parent’s behavior or a condemnation of the other parent’s behavior.
No matter what financial results the divorce may be or no matter how indignant one or the other of the party’s feeling are regarding the divorce, the best interests of the children will be better served by maintaining as good a parent child relationship as is possible.