Many parents who are divorced or are otherwise not living in the same household find this area of family law to be the most important to them; bitter disputes can arise between parents as to how much time they get to spend with their child. Many times, a person other than the parents becomes involved and may fight for custody or visitation.
What rights a person has to custody or visitation varies greatly depending on their relationship to the child. Custody and visitation disputes most commonly arise between the two parents or a parent and an interested third party such as a grandparent or some other caregiver. These actions can be very complex as the courts must weigh the interests all parties involved. Below is a description of both types of custody/ visitation claims:
Custody/ Visitation Disputes between Parents
When a custody dispute arises between two parents each parent has an equal right to custody. The governing principle in these cases becomes the “best interest of the child.” Courts can award Joint custody, Sole custody to one parent with appropriate parenting time to the other, or any arraignment determined not to be contrary to the best interest of the child.
In making a decision on custody courts will consider but are not limited to parents ability to agree and communicate, parents willingness to except custody and unwillingness to allow parenting time, child’s interaction with parents and siblings, domestic violence, safety of parents and child from abuse, the preference of children of sufficient age, the needs of the children, stability of home environment, effect on education, parental fitness, geographic proximity, time spent with child prior to separation, parent’s employment responsibilities, and the age and number of children.
Courts will enforce any agreement between the parents so long as the agreement is not contrary to the interest of the child. Where an agreement cannot be reached the court can ask parents to submit custody plans which the court will consider in making its determination.
A common question in Custody disputes is whether joint custody can be obtained. Joint custody actually comes in two parts, joint legal custody and joint physical custody. Joint physical custody requires a child to spend significant periods of time in the primary care of both parents with each making minor day to day decisions for the child. Schedules for joint legal custody can be alternating weeks, or four days with one parent three with the other. While there is no exact schedule for joint physical custody, liberal visitation such as alternating weekends, one night through the week, and alternating major holidays, do not count as joint physical custody. Joint physical custody is often impractical and rare in New Jersey. Joint legal custody, on the other hand is the right to make major decisions regarding the child’s welfare such as those involving school or health care. This arrangement is more common and may, in fact, be the norm in cases where custody disputes arise as the result of divorce. For true joint custody to exist, there must be both joint legal custody and joint physical custody.
Where one parent is granted physical custody of the child, the other parent should receive visitation rights absent a showing by clear and convincing evidence that the child would be psychologically or emotionally harmed by visitation with the parent or the parent is unfit. The non-custodial parent still maintains there constitutional right to the companionship of their child and the public policy of New Jersey has been to foster that bond.
Custody and Visitation Disputes Involving a Third Party and a Parent
In cases where a third party is seeking custody against a parent, the parent has a superior constitutional right to that of the third party. A presumption exists in favor of the parent’s wishes in these situations. This however, is not dispositive. A third party can be successful on a claim for custody by showing parental unfitness, abandonment, gross misconduct or that not granting the third party custody or visitation would cause serious psychological or physical harm to the child.
A common way of establishing psychological or physical harm would be to show psychological parenthood on the part of the third party. This occurs when the parent of a child fosters a relationship between the child and the third party such that the third party stands in the shoes of a parent. In order to prove psychological parenthood, the third party must show that, The biological or adoptive parent consented to and fostered the relationship, the third party and the child lived in the same household, the third party assumed obligations contributing to education development and support, and that the third party was in the parental role long enough to establish a parental bond with the child. Psychological parenthood must be shown by clear and convincing evidence. It is often difficult to establish and requires both legal expertise and the testimony of expert witnesses. Once psychological parenthood is established, custody is determined by a best interest of the child standard as if the third party was a parent.
Under New Jersey law, third party may seek visitation if the third party is a grandparent or sibling and can show by a preponderance of the evidence that visitation is in the best interest of the child. Court’s will consider the relationship between the third party, the child, and the person who has custody of the child. other considerations of the court will be how long it has been since the third party has had contact with the child, the effect visitation will have on the child’s relationship with the parents, any other parenting time arrangements that exist, the good faith of the third party in making the request, any abuse by the third party, and all other factors the court finds relevant. In cases where visitation is sought against a custodial parent, courts require a showing of harm to the child should visitation be denied. This is to protect the superior constitutional rights of a parent to raise there children.
A third party not meeting these requirements can also seek visitation by establishing psychological parenthood. As with custody, if the third party meets the requirements of this test, visitation will be determined by the best interest of the child standard as if the third party were a parent.
If you are involved in a custody/ visitation dispute, it is important that you speak with an attorney regarding your rights. Call William C. Miller at (732) 742-5556 and schedule a free consultation.