If you are involved in a divorce proceeding, and there are minor children in the home, you’ll have to address issues of custody and visitation. You can formulate a plan with your ex, but the court will still have to approve that arrangement. Any agreement that you make will, by law, be required to be “in the best interests of your children.” It’s important to understand, as you begin to consider what’s best for your children, that there are two different types of custody under New Jersey law—physical custody and legal custody.
Physical custody simply refers to where the child spends most of his or her time, i.e., which parent provides the primary residence for the child. There are no hard and fast rules governing physical custody, but historically, the courts have preferred to grant physical custody to one parent only—known as sole physical custody—while allowing the other parent visitation. This stems from a belief that children need stability and will fare better if they have one place that they call home. That’s not to say, though, that courts have not approved of different types of arrangements, where minor children essentially split their time equally with parents, provided the court finds it to be in the best interests of the child.
In situations where one parent is granted sole or exclusive physical custody, the typical arrangement, depending on the proximity of the parental homes, is to allow visitation every other weekend, rotating holidays and perhaps even one overnight stay per week. If the distance makes that difficult, the non-custodial parent may have physical custody fewer times per year, but for longer periods—such as a month in the summer.
Legal custody refers to the right to make decisions about the child’s well-being, involving such topics as medical, educational, religious or other special needs. As a general rule, the courts prefer to grant joint legal custody, so that parents work together to make joint decisions that benefit the child. A parent may, however, ask the court for sole legal custody if there’s evidence that the other parent has unilaterally made decisions that were not in the child’s best interests.
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