Divorce Myth #1* – Mom Always Gets Custody of the Children
There is a common perception that regardless of the circumstances that Mom will always be awarded custody of the children. In reality, the Court is gender neutral and there is no law that states that the mother is automatically awarded custody.
It is well settled that the primary consideration in an award of custody is the best interest of the child. Each case is to be decided on its own merits and the Court must take into consideration a number of statutory factors which are listed in N.J.S.A. 9:2-4. They include: (1) Parent’s ability to communicate and cooperate; (2) Parent’s willingness to accept custody; (3) Interaction and relationship of the child with parents and siblings; (4) History of domestic violence; (5) Safety of the child; (6) Preference of the child; (7) The needs of the child; (8) The stability of the home offered; (9) Quality and continuity of the child’s education; (10) The fitness of the parents; (11) The geographical proximity of the parent’s homes; (12) The extent and quality of life spent with the child prior to or subsequent to the separation; (13) The parent’s employment responsibilities; and (14) The age and number of the children.
The preferred custody arrangement in New Jersey is for the parents to share joint legal custody. Under this standard, the parties are expected to communicate on all matters relating to the child’s education, medical treatment, religious training and social development. The parties agree that their decisions will be made with a view toward promoting the best interests of the child. Each parent shall promote the child's respect and love for the other parent as well as the child's contact with both parents. Both parents agree to exert their best efforts to work cooperatively in future plans consistent with the child's best interests and the parties shall make every effort to amicably resolve any disputes which may arise.
Separate from legal custody is the concept of residential custody. In some cases the child resides primarily with one parent and the other parent has scheduled parenting time. In some cases, the parents share residential custody whereby neither parent has the child primarily. There is no right or wrong answer. Whatever works best for the parents, and, more importantly, the child should guide your efforts in developing an arrangement that work best for everyone. Mediation is one possible way of developing such a custody and parenting time plan.
As the preference is a joint legal custody arrangement, it does not matter if you are mom or dad. Joint is just that- joint. But, does Mom have an advantage as to the ultimate determination of residential custody? Again, from a legal stand point, no. The factors are applied irrespective of gender. However, from a practical stand point, there are a few things that most judges will be taking into consideration when making their decisions. On example is partly encompassed in custody factor (12) and it addresses the involvement of the parent pre-litigation. Most judges are not impressed by an absentee parent making application for residential custody over the parent who clearly has been the primary caretaker throughout the child’s life. Another example is that most judges are not impressed when it appears obvious that one parent is pushing for more time with the children solely as a way to reduce their support obligations.
*This is the first article in a ten part series exploring the most common myths concerning divorce law in New Jersey.
All of the attorneys at Domers & Bonamassa are well versed and have years of experience addressing family law issues, no matter how complicated. Contact us today at (856) 596-2888 for a private consultation. We appear in the following counties: Burlington, Camden, Gloucester, Cumberland, Salem, Mercer, Ocean, Atlantic and Cape May. Our practice areas include: divorce, custody, parenting time, child support, alimony, domestic violence, college expenses, equitable distribution, name changes, step parent adoptions, paternity issues, child abuse and neglect, prenuptial agreements, mediation and arbitration.
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