Key Terms in Child Custody
One of the pitfalls of divorce is listening to friends and acquaintances who've been through the same experience and assuming your case will work out the same way. When you add in a lot of legal mumbo jumbo, it can all become even more confusing, particularly with regard to custody and visitation. If custody is a major issue in your divorce, don't rely on secondhand reports from other parents to guide you. Start by gaining a firm understanding of exactly what it is you want the court to order, or that you want to negotiate for with your ex. If you have further questions after reading this article, you should consult with a knowledgeable NJ child custody attorney.
When you file for divorce, if you and your spouse take up separate residences, the kids will remain living with one of you. A status quo is established. At some point during the proceedings -- which can take months to a year or more depending on how complicated your divorce is -- your lawyer or your ex's lawyer may ask the court to make this arrangement into a "temporary" custody order to govern the situation until your divorce is final. When that day comes, the judge will look at this temporary order and will most likely say, "The kids have been fine just where they are for almost a year now. In fact, they're thriving. There's no reason to change the arrangement."
Temporary orders have a way of turning into permanent custody arrangements in a divorce judgment, so you don't want to enter into a temporary arrangement lightly. Talk to your lawyer before you agree to any "temporary" arrangement or -- better yet -- before you move out of the house.
When the court gets around to entering a final custody arrangement as part of your divorce judgment or decree, it will order two distinct and different types of custody: physical and legal. Physical custody determines who your children will live with the majority of the time. The parent with physical custody is often called the "parent of primary residence" because the children live primarily with her. The other parent gets parenting time or visitation, maybe on weekends with a weeknight dinner thrown into the mix.
In a joint physical custody arrangement, the children live with each parent roughly an equal amount of time. This rarely works out to an exact 50-50 arrangement. Parents' work schedules and the children's own social calendars and schooling needs must be accommodated so joint physical custody often works out to more of a 60-40 or 65-35 kind of schedule. Joint custody works best when divorced parents remain amicable and can work together to manage the logistics of moving the kids back and forth from one home to the next so the children -- particularly younger ones -- don't end up feeling displaced or confused.
Legal custody is something else entirely. When most parents say they have "joint" custody, they're referring to legal custody -- the right to make major decisions on behalf of their children. This might include what schools they attend, when your daughter is old enough to begin dating, or what medical care is necessary. Courts are increasingly leaning toward joint legal custody arrangements so both parents have a say on these issues.
You can have joint legal custody without joint physical custody. The kids might live with your ex most of the time, but important decisions won't be made without your input. Likewise, you might share joint physical custody but your ex has sole legal custody because your schedule or responsibilities might not allow you to contribute to decisions in an emergency.
"Sole" custody is a phrase that often means the kids live with the only parent, and that parent has the only right to make decisions on their behalf. It's actually somewhat rare in this day and age. Absent issues of abuse or drug or alcohol addiction, courts generally want both parents to maintain an active role in their children's lives.
If you have any questions concerning child custody, call the Law Offices of Peter Van Aulen at 201-845-7400 for a consultation with an experienced NJ child custody attorney.