Your Guide to Child Custody and Support in New Jersey
Your Guide to Child Custody and Support in New Jersey was created by Tanya L. Freeman Esq. to help parents understand the complexities of family law in the state. We offer free consultations, give our office a call for guidance.
When a couple decide to divorce, their decisions rarely affect them and them alone. When you divorce, you are dismantling a family – that decision will ripple through the rest of your family and your friendships. Most importantly, it will affect the lives of your children. To some extent, all of the decisions in a divorce – including the division of property and assets – revolve around children, because both spouses will want to prioritize their children’s stability. Both will need to work together to come up with creative solutions to child custody, honest agreements about child support, and answers to all the other questions about parenting post-divorce – including travel, extracurriculars, and educational costs – that put the children’s interests first.
To do this, it will be necessary for both parties to approach the process ready and willing to listen and to speak, to suggest, to debate, and to compromise. Having an attorney that you trust to be as committed to your children’s well being as you are – and to foresee problems you won’t – is very important. However, there is no substitution for preparation. You’re entering a process that will shape the rhythms of your children’s’ lives, and determine your ability to provide for them. You need to think through the major issues you will address before you start the process – whether that process takes you to mediation, negotiation, or litigation in a courtroom.
When going through a divorce with children, the first issue you will need to resolve is child custody. Child support in New Jersey is determined by child custody; and all other expenses not included in child support payments will, too, depend to some degree on the custody arrangement. Start with the question of where your children will live – with whom, and for what days each week, month, or year – and work outward from there.
In New Jersey, there exist two types of child custody:
Legal Custody: This pertains to a parent’s access to school and medical records. New Jersey precedent prefers joint legal custody in all but extreme cases – for example, when there has been a history of child abuse.
Physical Custody: This pertains to where the children will live. While it’s possible to have a 50/50 physical custody arrangement, you have to think hard about the feasibility of this option: complicating factors include the proximity of both parents’ residences, career obligations, etc. Generally, in New Jersey there will be one “parent of primary residence” – the “custodial parent” – and one “parent of alternate residence,” allotted a certain amount of time with the children. There are countless ways to split this time up, accounting for holidays, summers, weekends, weekday dinners, and travel. While you have legitimate desires to be acknowledged in these decisions, it’s important here, as with all other decisions directly pertaining to the children, to put their interests first.
Benefits of Mediation over Litigation
If you go to trial, a judge will decide what’s best. That means a judge could be deciding what’s best for your children – and you’d have to abide by that decision. No one knows your children better than you and your spouse do. That means the question of child custody is often best suited to mediation. Can you and your spouse work together, with your attorneys, toward decisions that put your children’s interests first? How will you handle holidays, birthdays, and other milestones? Where will they go to school and where will they live?
When negotiating child custody, you need to think far into the future and be sure to bring up every concern. With your spouse, you should discuss:
- Your schedules and availability.
- Your expectations for the child’s religious upbringing and education.
- Your ideas for dividing weekends, holidays, and summers.
- Depending on your situation, you may also want to discuss any plans to move out of the area or out of state.
Be prepared to give and take, but don’t think of this as bargaining or bartering (between the two of you). Instead, think of it as planning together toward a common goal: the upbringing of your children after the divorce.
In some situations – for example, where domestic abuse is involved – mediation may not be the best course. In any case, you want an attorney you can trust to help guide you – and your children – through the process of deciding child custody.
If left up to the courts, a judge will consider the following factors in deciding child custody:
- The parents’ willingness to accept custody.
- The needs of the child.
- The fitness of the parents – their ability to parent.
- The stability of each home environment.
- The parents’ ability to communicate and work together in matters relating to the child.
- Any history of unwillingness to allow visitation (except in cases of abuse).
- Any history of domestic violence.
- The child’s safety and the safety of one parent from physical abuse by the other parent.
- The child’s preference, if the child is old enough to make an intelligent decision.
- The interactions and relationship of the child with his or her parents and siblings.
- The child’s educational needs (and the value of continuity).
- The proximity of the parents’ homes.
- The extent and quality of each parent’s time spent with child before and after the separation.
- The parents’ employment responsibilities and how this might affect their ability to parent.
- The age and number of children.
Factors Influencing Parenting Time and Visitation
Parenting time refers to the amount and distribution of time the children will stay with the parent of alternate residence. It’s important to remember that parenting time after a divorce is a fluid thing – there will be inevitable interruptions to the schedule, and the children themselves will dictate changes as their interests, needs, and desires evolve over time. In as much detail as possible, though, you and your attorney should try to account for holidays, birthdays, vacations, and other special events in the settlement.
Handling the Holidays
Divorces disrupt family traditions established over years. You want to keep that tradition, but you have to share it with your former spouse. There are many creative ways to reach an agreement on how to share the holidays. Some are easier: Mom gets Mother’s Day and Dad gets Father’s Day, as well as the respective birthdays. But what about Christmas Eve and Christmas Day? The eight days of Hanukah? New Years? How will both parents get to share in the experience of their children’s birthdays?
It’s unlikely that you’ll get exactly what you want when holidays are shared. And if you leave it up to them, New Jersey courts will almost always make parents alternate. The complications of sharing holidays should be an inducement for you to go to mediation for this part of the divorce process. Coming to a cordial agreement with your spouse will allow for more creative solutions, and be better for the children.
Traveling Abroad with Children after a Divorce
When one parent decides to take children on a trip abroad after a divorce, this often leads to conflict, stress, and re-litigation. It’s best to anticipate this issue and come to an agreement in mediation. Can you anticipate reasons for the children traveling abroad – like family members in other countries? Is there a fear that one parent might flee the court’s jurisdiction with the children? If you feel this way, you should notify your attorney at the start of the divorce process, so your attorney can inform the judge at the proper time. Consider, too, that both parents have to agree before children can obtain passports. If your children don’t already have passports and you anticipate wanting to travel abroad, make sure you broach the subject in mediation, and try to avoid re-litigation.
Relocating to Another State with the Children after a Divorce
Relocating with minor outside New Jersey is one of the most difficult legal battles a divorced person, or person seeking divorce, can face. The court considers many factors in response to a request to relocate outside of the jurisdiction, including the child’s ties to the community, any extended family members who live in New Jersey, and how this move will impact the non-moving parent’s custody and parenting time plan.
One spouse wanting to move to Brooklyn from northern New Jersey is almost a non-event. Although a court order is required, the process is much less difficult than it would be if the contemplated move were from New Jersey to Los Angeles, for instance. In all cases, the court will ask questions like these: How will you facilitate adequate parenting time for the non-moving parent? How will you maintain the child’s family ties within New Jersey? What kind of plan can be established so that the child can communicate with the non-moving parent? Could that other parent move, along with the family, even though you’re no longer a cohesive family?
It will never be as simple as, “I’m buying a plane ticket. I have a new job, and I’m leaving the state of New Jersey.” Getting a court order that allows you to move is a time-consuming process and, if you’re even contemplating such a move, you should begin discussion with your attorney early on.
A child custody decision in a divorce can leave the primary custodial parent with the sudden burden of most childcare expenses. The obvious ones are education and healthcare, but you should also think about extracurriculars, sports and hobbies, travel, and, for older children, cars and car insurance. New Jersey uses two sets of guidelines, or “worksheets,” to calculate child support for single or joint custodial arrangements. Still, you’ll want to consult an experienced attorney who can help you think in the long term, anticipating changes to your child’s needs, and ensure that your former spouse contributes a reasonable and equitable share.
Calculating Child Support
New Jersey law provides two sets of guidelines – often called “worksheets” – for determining the amount of child support. One worksheet is for a “Sole Parenting” situation (in which one parent has full physical custody) and the other is for a “Joint Parenting” situation (in which both parents share physical custody, though not necessarily 50/50). These relatively simple worksheets factor in each parent’s income and the estimated expenses of child care. They also account for the amount of time that a child stays with each parent. The “parent of alternate residence” will always make weekly payments to the “custodial parent,” though these will be less the closer the parenting time arrangement approaches to 50/50.
There are two important things to note here. First, the cost of raising a child generally increases as the child ages, but child support payments are fixed, and based on an average of the costs spread across the estimated years until child support payments end. This means that if you are receiving payments, New Jersey law assumes there will be a surplus in the first years, and that you will save or invest this surplus to call on in the later years. Second, the worksheets do not account for all of the expenses of raising a child. Health insurance, non-reimbursed medical expenses, private school tuition, summer camp, extracurriculars, and vacations may not be covered. You should address these anticipated expenses with your attorney and then with your spouse so that you can plan an equitable way to cover them.
Emancipation and the Duration of Child Support Payments
In New Jersey, child support payments do not automatically end when a child turns 18. The important age here is 19, but even this is not necessarily a trigger ending child support.
The obligation to pay child support in New Jersey ends when a child is “emancipated.” This may be when a child turns 19, but the state law delays emancipation if a child chooses to attend a college full-time. Emancipation could happen before a child turns 19 if the child leaves the custodial parent’s house (presumably to start a job and/or family).
Handling Child Care Expenses if Both Parents Work Outside the Home
If both parents are working outside the home, you’ll need to consider work-related childcare expenses in any child support calculations. Daycare, for example, costs a weekly set amount. Older children requiring care before or after school, or summer camp expenses, are slightly more complicated, but not hard to factor into a settlement with the help of an experienced attorney.
Paying for Medical Expenses
Some spouses come into the divorce process with extraordinary out-of-pocket medical expenses – for example, a child might have autism, muscular dystrophy, or some other condition or illness that requires regular attention, therapy, constant medication, or special programs. These costs are steep but easy to predict, as they recur on a regular basis and will have been well-documented before the divorce process begins. Still, these expenses are over and above regular child support. It’s important that both spouses quantify these expenses early in the process, to ensure that their children receive uninterrupted services, and to avoid re-litigation.
Paying for Private School Tuition
If your child has been enrolled in a private school for some time, the tuition will be an important item to bring up to your attorney and to discuss with your spouse before settlement. Recurring tuition payments will have been well-documented and easy to calculate into the future.
Complications arise with very young children who either have not started school or who have been in a school for a short time. One parent might want that child to attend a private school, while the other disagrees. Resolving these conflicts is sensitive and fact-specific – many factors determine whether the parent of primary or alternate residence, or both parents, will be responsible for the decision, and for the payment of private school tuition. Seek the counsel of an experienced attorney to help you work through these questions.
Paying for Extracurricular Activities
Extracurricular activities do not factor into the New Jersey child support guidelines. Whether your child takes piano lessons or plays an expensive and time-consuming sport like hockey, it’s important to discuss these costs with your spouse. You have to think about the expenses – and how these expenses might grow as your children move on to new or more involved activities – but this isn’t your only concern. What about lessons, practices, and big matches? Who’s going to transport the child? Will you both attend? Can you emotionally handle attending together? Don’t just think about these things – talk about these things, with your spouse and your attorney, and put them into the final settlement agreement.
Far-Off Expenses: Cars, Driving Lessons, and Insurance
Especially with young children, parents going through a divorce can forget about seemingly far-off expenses, like cars, driving lessons, and insurance. An experienced divorce attorney can help you plot out and think through these things in advance.
When a child gets a learner’s permit, the car insurance for the household in which the child primarily resides will go up significantly. Driving school will be an additional expense. Some parents also anticipate buying a child’s first car. You and your spouse need to come to an agreement about these costs in advance, to avoid relitigating.
Planning for College Costs
College costs can be hard to address in a divorce settlement, because so many factors come into play. College costs range widely depending on whether or not a young person attends a private or public, in-state or out-of-state school. The total cost will range from tens to hundreds of thousands of dollars. One parent might expect to pay all or part of a child’s college expenses, while the other might expect the child to pay his or her own way through a degree.
In New Jersey, divorced parents are expected to contribute to a child’s college expenses, so long as the child has exhausted money from scholarships, financial aid, and loans. If your child isn’t near college-age, you’ll still want to put a placeholder in your settlement stating your intent. If you wish your child to go to a state school, to attend your own alma mater, or to choose his or her own dream school, and in any case expect your spouse to contribute to the cost, that might not be enforceable, but you should still put your wishes into the official statement.
Modifying a Child Support Agreement
So much can change in a child’s life and in your own circumstances that could make you want to modify a child support agreement. The most common reason clients seek to modify a child support agreement is the loss of a job. However, this circumstance alone doesn’t mean that a judge will relieve you of your child support obligations. As a parent in New Jersey, you are required to support your child all the way through to emancipation. The considerations that would go into modifying a child support agreement are fact-based and case-specific. If you’re wondering about the possibility of modifying a child support obligation, you should contact an experienced divorce attorney.
Living in the Same Home During a Divorce
It’s possible and, in some cases, advisable for spouses to continue living together during the divorce process. The most obvious reason is that it saves both money on household expenses, but it could also benefit the children, providing stability, and giving them more time to adjust to the idea of your divorce.
However, cohabitating can lead to serious and sometimes even dangerous complications, compounding stress in an already stressful time. Have both parties emotionally moved on from their former relationship? Is there acrimony that could negatively affect either party’s emotional wellbeing, or the wellbeing of the children? Seriously consider these questions before deciding whether you might continue to share a home during the divorce process.
There is no one solution to fit all divorce cases. You might move the children to another location. The children might stay in the shared home while both parents rotate occupancy, each keeping up another residence elsewhere.
If one spouse has a history of violence, continuing to live together is totally inadvisable. In cases of violence, the court will order the violent party out of the home.
Handling Social Media Accounts During the Divorce Process
Social media is not the place to litigate your case. Nor is it the right place to vent your frustration against your spouse, the judge, your spouse’s attorney, or your own attorney. You gain nothing by venting, and you could do a lot of damage.
You don’t have to delete your social media accounts, but you should keep your legal battle off the internet. This is especially important if you have young children. Anything at all that you post is subject to be screenshotted, shared, and commented upon. You don’t want your child exposed to that. You don’t want your divorce to become a piece of gossip for your children’s friends and their parents. While it’s important to be frank and open with your children, conversations about the divorce should happen in person, in your home, in a space that you control.
In high profile cases, a judge might legally bar you and your spouse from posting anything about the case.
Domestic Violence and Child Abuse
If there is any history of domestic violence or child abuse, or if you have any fear of the same, you need to get yourself and your children away from the abuser. If your children are the victims of abuse at the hands of your spouse or partner, call the police and/or Child Protection and Permanency (part of the New Jersey Department of Children and Families). Both police and CP&P will be obligated to investigate your claim, and may take action to remove the abuser.
Understand that the children don’t have to be the direct victims of abuse to suffer. Witnessing abuse, especially abuse perpetrated by one parent on the other parent, can cause lasting psychological trauma. If you are the victim of abuse, you need to end that abuse as much for your children’s sake as theirs. If you think that you have insulated your children from the abuse, and that they do not know about the abuse, you are probably wrong. They can sense the pain, tension, fear, and animosity in their home environment.
Domestic violence is distinct from child abuse. In most cases under New Jersey law, a victim of domestic violence must be 18 years of age or older, or an emancipated minor who experienced one of the acts above perpetrated by:
- A spouse.
- A former spouse.
- Any person who is part of his or her present or former household.
In New Jersey, domestic violence is defined as the occurrence of one or more of the criminal offenses listed in the Prevention of Domestic Violence Act of 1990:
- Terroristic threats
- Criminal restraint
- Sexual assault
- False imprisonment
- Criminal sexual contact
- Criminal mischief
- Criminal trespass
New Jersey mandates arrest if law enforcement officials take a criminal complaint, seeing evidence of domestic violence. Officials may also seize any weapons in the alleged perpetrator’s possession for safekeeping, or if a court grants the victim an order for the seizure of any specific weapon.
- The court may grant a victim an emergency protective order, including provisions for:
- Keeping the alleged perpetrator from the premises.
- The seizure of weapons.
- Preventing the alleged perpetrator from purchasing any weapon.
- Granting possession of shared pets to the victim.
- Giving the victim exclusive possession of the home.
- Establishing a temporary child custody and parenting plan.
- Ordering the alleged perpetrator to compensate the victim for any losses.
- Ordering the alleged perpetrator into counseling or a psychiatric evaluation.
- Prohibiting contact with the victim.
- Requiring the perpetrator to pay the victim’s living expenses.
Not every protective order in New Jersey will contain all these provisions. The nature and scope of the order will depend upon evidence available, the nature and number of the alleged crimes, and the immediate needs of the victim and children.
The order, along with any police or CP&P reports, could help you win a better result in your child custody negotiations or litigation – which would ultimately be a win for your children.
Protecting Yourself (and Your Children) from False Accusations of Abuse
Of course, some spouses use claims of domestic violence or child abuse are leverage to win more desirable terms. Far too often, spouses make entirely false or exaggerated claims of abuse to get the opposite party out of a shared home, go get control of the children or of assets, to punish the other spouse, or to influence a judge’s decision. Unfortunately for the accused, the definition of “domestic violence” is so broad that some false accusers have used accusations of “aggressions” like late night phone calls to win convictions and orders of protection – orders that violate the rights of the wrongfully accused, and could influence the legal outcomes of a divorce that will shape the rest of their lives, and their children’s lives.
If your spouse has falsely accused you of domestic violence or child abuse, you need to act quickly. Inform your attorney, who will be able to present evidence and make a case for the dismissal of all charges at the hearing for your temporary order of protection. Protect yourself and your children, and rely on experienced counsel to defeat these false and malicious charges.
If you are going through a divorce, we know what is playing havoc with your peace and equanimity: the kids. If you are lying awake at night, fretting about what will happen to your children, how the ordeal is affecting them, and how you can ensure your relationship with them remains intact, please give dedicated child custody and child support attorney, Tanya Freeman of Morris County, a call to keep your children unaffected and happy.