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My spouse and I are getting a divorce. Does a mom or stay-at-home parent automatically receive custody of my child?

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No, a mom or stay-at-home parent does not automatically receive custody of a child under New Jersey law. It is important in answering this question to differentiate between legal custody and physical custody.

Legal custody is the authority and responsibility for making major decisions concerning the child's health education and welfare. In New Jersey, joint legal custody is favored, which provides that the parents are to consult with one another in making such decisions.

Physical custody is where the child will physically reside. Joint physical custody occurs where each parent shares primary caretaking responsibilities, usually in a shared residential arrangement. The public policy in New Jersey seeks to assure minor children of frequent continuing contact with both parents after the parents have separated. However, a true 50/50 sharing of physical custody of a child where each parent exercises an equal number of overnights with the child is rare as it is often impractical and disruptive for the child.

In a determination of both legal and physical custody, Courts apply a "best interests of the child" standard. Rather than focusing on the parents' desires, under the best interests standard, a court focuses on the welfare of a child by considering multiple factors on a case-specific basis. In any proceeding involving the custody of a child, the rights of both parents are considered to be equal. A parent will not be considered "unfit" unless his or her conduct has a "substantial adverse effect on the child."

When determining legal custody of a child, a Court's inquiry includes, but is not limited to, the following questions:

  1. whether the child has established relationships with both parents such that the child recognizes both parents as sources of security and love and would therefore benefit from joint custody;
  2. whether both parents are mentally and physically fit and capable of parenting;
  3. whether each parent is willing to accept some form of custody; and
  4. whether the parents will be able to maintain the potential for cooperation regarding the child, despite their hostile feelings toward one another and the availability of enforcement techniques to ensure cooperation.

In addition to these factors, the determination of physical custody requires an examination of practical considerations involving financial status, proximity of the parents' homes, employment demands, age and number of children, expense of duplication of facilities and furnishings. The preference of the children, if they are old enough, must also be given due weight.

In a joint physical custodial arrangement, one parent is typically deemed the Parent of Primary Residence (primary caretaker) and the other parent becomes the Parent of Alternate Residence (secondary caretaker). The Parent of Primary Residence typically exercises a greater number of overnights with the child. In determining which parent is properly designated the Parent of Primary Residence, key custodial responsibilities are generally considered, such as bringing the child to and picking the child up from school; helping the child with homework assignments; bringing the child to and attending sports and school activities; preparing and planning the child's meals; caring for the child overnight; and attending to the child's medical and other health needs.

If both parents come to an agreement as to the custody of a child, a Court will honor such an agreement unless it is contrary to the best interest of the child.

If you are going through a divorce or separation and have any questions or concerns about custody of your children, please contact an experienced family law attorney at Cohn Lifland to help you protect the future of your family.

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