People often come into my office and tell me: “I want full custody.”
My next question is usually: What do you mean by full custody?
Do you want the children to live primarily with you? Do you want the authority to make major decisions without your spouse's agreement? Do you believe the other parent's time with the children should be limited or supervised? Those are very different things.
“Full custody” is a phrase people use all the time, but it doesn't tell me exactly what custody arrangement you are asking for. In New Jersey, it is important to distinguish between legal custody, which generally concerns major decisions affecting your child, and the residential or parenting-time arrangement, which determines when the child is with each parent.
Before fighting for “full custody,” make sure you understand what you actually want and why you believe it is best for your child.
Joint legal custody generally means both parents share responsibility for major decisions affecting their child. Those decisions can involve education, medical care, mental-health treatment, religious upbringing, and other important issues affecting the child's welfare.
It does not mean the child has to spend exactly half of the time with each parent.
Parents can share legal custody while the child lives primarily with one parent and spends parenting time with the other. That distinction is one of the reasons the phrase “50/50 custody” can also create confusion.
Under joint legal custody, the important point is that both parents retain responsibility for significant decisions affecting their child. New Jersey case law describes joint legal custody as shared authority and responsibility for major decisions concerning a child's welfare.
Joint legal custody only works when parents are capable of putting their personal conflict aside long enough to make important decisions for their child. That does not mean you have to like your former spouse.
You don't have to agree about everything. You don't need to have dinner together or pretend the divorce never happened. But you do need some ability to exchange important information and address issues involving your child without turning every decision into another battle.
New Jersey courts have said joint custody requires a potential for cooperation in child-rearing, even though the parents do not need to have an amicable relationship.
If every medical appointment, school decision, therapy recommendation, or extracurricular activity becomes another court fight, the title “joint legal custody” isn't accomplishing much for the child.
There are circumstances where shared decision-making simply may not be workable or safe.
Depending on the evidence, concerns might involve:
These are not boxes you simply check to receive sole custody.
Custody decisions are highly fact-specific, and New Jersey courts focus on the child's best interests. Courts have authority to award joint custody, sole custody to one parent with parenting time for the other, or another arrangement that serves those interests.
Not necessarily. Almost every couple getting divorced has some degree of conflict. If disagreeing with your former spouse automatically disqualified parents from sharing legal custody, joint custody would be impossible in a lot of divorces. The more important question is whether the conflict actually prevents you from parenting effectively.
Can you exchange important information? Can you discuss a medical issue when your child is sick? Can you deal with a problem at school? Can you separate what happened in your marriage from what your child needs now?
If the answer is generally yes, conflict between the adults does not necessarily make joint legal custody impossible. If the answer is consistently no, then the court may need to consider a different arrangement.
This is another distinction people frequently misunderstand. One parent having sole legal custody does not automatically mean the other parent never sees the child. Legal custody and parenting time address different questions.
A court might determine that one parent should have authority over major decisions while the other continues to spend substantial time with the child. In other circumstances, parenting time might need additional restrictions or supervision because of specific safety concerns.
Likewise, a child living primarily with one parent does not necessarily mean that parent has sole authority over every major decision. That is why telling your attorney you want “full custody” is only the beginning of the conversation.
If parents cannot agree on custody, the court's focus is the best interests of the child. New Jersey law provides for multiple statutory factors, and courts are expected to evaluate the family's particular circumstances rather than simply choosing the parent who makes the stronger demand.
Those considerations include the parents' ability to communicate and cooperate, their relationships with the child, the child's needs and safety, the stability of the home environments, domestic violence, the child's education, the parents' employment responsibilities, the time each parent has spent caring for the child, and, when appropriate, the child's preference.
The question is not: “Which parent deserves to win?” It is: “What custody arrangement best serves this particular child?”
One of the least useful things you can tell a judge is: “My ex is impossible.” Maybe that's true. But what does it mean?
If you believe shared custody is harming your child or cannot realistically work, focus on specific conduct and its effect on the child.
Did the other parent repeatedly refuse necessary medical treatment? Are there documented substance-abuse incidents while the child was in that parent's care? Are important school decisions being deliberately blocked? Are there threatening communications? Is there a history of domestic violence?
Specific facts are far more useful than labels.
You may believe your former spouse is controlling, selfish, irresponsible, or impossible to deal with. A custody case should focus on what the parent actually did and how that conduct affects the child.
I understand why parents use the phrase “full custody.” Usually, what they are really telling me is that they are worried. Sometimes those concerns are well-founded. Other times, what a parent actually needs is not sole custody but a clearer parenting plan with better boundaries and more specific rules.
The goal should not be to collect the strongest-sounding custody title. It should be to create an arrangement that allows your child to be safe, stable, cared for, and as insulated from the conflict between the adults as possible.
If custody may become an issue in your divorce and you want to understand the decisions you may face before the case begins, my free Divorce Smarter Course explains the New Jersey divorce process in plain English.
Until next time,
Steve