If I Lose Child Custody, Can I Get it Back?

Reviewed by Mark P. McAuliffe

When a couple gets divorced, one of the most important matters they must figure out is child custody. In the event the couple cannot reach an agreement, the court will intervene and make the decision on their behalf. As such, if the court made a decision in your custody case and you were not awarded custody, it can be devastating. However, losing custody is not always permanent, as the court may grant modifications if substantial changes occur. It’s also natural for an arrangement that once suited your child to change as they grow up and develop new needs, or the circumstances change for both parents. As such, if you can show that you have made meaningful and lasting changes, you may be able to regain your parenting rights. The following blog explores what you should know about these difficult circumstances.

How Do New Jersey Courts Determine Custody?

When deciding on a custody arrangement, the court must adhere to the child’s best interest standard. Essentially, this means that the court is required to prioritize the health, happiness, well-being, safety, and stability of the child above all else, including the wants and wishes of the parents.

In New Jersey, a parent who wishes to regain or modify custody of their child must prove that a “substantial change in circumstances” has occurred, while also proving that modification of the custody order is in the best interests of the child. The court will examine more than just a parent’s promises in favor of long-lasting, documented changes to reduce risk to the child.

It’s important to understand that the child’s best interest standard is applied to custody cases across the state, including those in Bergen County. While local procedure may vary, this standard is required.

Factors Considered By the New Jersey Courts

In accordance with NJ Rev Stat § 9:2-4, the following are some of the most common factors the courts will consider when making a custody decision:

• The relationship between the child and each parent
• If the parent will act in the child’s best interest
• The stability each parent can provide the child
• Whether or not the parents are willing to accept custody
• What the child needs
• The child’s safety
• History of abuse
• Both parents’ fitness
• The geographical proximity of both parents’ homes
• The preference of the child, if they are of sufficient age

What Are Common Reasons a Parent Will Lose Custody?

It’s imperative to understand that the courts will not revoke a parent’s custodial rights or parenting time as punishment. This is only done when the court believes that the child is at risk of serious harm or neglect while in the care of the parent.

Situations That Often Lead to Custody Loss

Some reasons that parents will not be awarded custody, or will lose their custody rights, include:

• Neglect
• Abandonment
• Physical abuse of the child
• Mental/emotional abuse of the child
• Domestic violence
• Alcohol and drug abuse
• Child abduction
• Unwillingness to co-parent
• Criminal activity and incarceration
• Untreated serious mental health conditions

Can Custody Be Restored in Bergen County?

Yes, in New Jersey, a parent may have custodial rights and/or parenting time restored if they can show that a substantial change in circumstances has occurred.

As mentioned, when modifying a custody order, the court will look for signs of lasting, meaningful improvements. It’s necessary to understand that you must have evidence to support these changes, as anecdotal claims will not suffice. Additionally, you will still need to show that a change in the current custody order is in the best interest of the child.

What “Substantial Changes” Mean in a Custody Case

Because the courts will look for long-term improvements, not just short-term solutions, understanding what constitutes a considerable change is critical.

It’s necessary to understand that the parent seeking to regain custody is required to fulfill the burden of proof. This means that the court will not consider a change to the custody plan until you can provide credible proof that the circumstances have changed and would benefit the health, safety, and stability of the child.

Common examples include:

• Completion of a substance rehabilitation program
• Consistent negative drug or alcohol tests
• Steady employment and financial stability
• Positive reports from supervised visitation
• No criminal or legal issues
• Safe and stable housing that is adequate for a child
• Ongoing compliance with prior court orders
• Ongoing mental health treatment with documentation

How to Ask the Bergen County Court to Restore Custody

If you are looking to regain custody of your child in Bergen County, the first step is to file a formal petition with the court. Generally, you must file with the court that is responsible for issuing the initial custody order.

In the event that both you and the child’s other parent agree that a modification of the custody arrangement is necessary, you may be able to work together to negotiate a new schedule. If this happens, you may submit it to the court, where a judge will review and implement the order. However, if you are unable to reach an agreement, you must file a formal petition with the court.

Steps in the Custody Modification Process

1. File a formal motion for custody modification with the Family Division of the Bergen County Superior Court
2. Provide adequate documentation that your circumstances have changed
3. Submit evidence that this change is in the best interest of your child
4. Attend any mandated mediation or evaluation sessions
5. Attend the court hearing where the judge will review the evidence submitted

Evidence That Can Help You Regain Custody

As you can see, a considerable part of this process relies on the submission of adequate evidence. Understanding the documents that can help increase your chances of a favorable outcome is critical.

Strong Evidence in Custody Restoration Cases

• Certifications of completion from rehabilitation programs
• Employment records and pay stubs
• Clean drug and alcohol testing
• Letters from your therapist or counselor
• Parenting class completion certifications
• Photos of an appropriate sleeping space for the child
• Lease or mortgage statements showing stable housing

What If the Other Parent Objects?

As mentioned, the court must consider the best interests of the child above all else, including objections by the other parent. If the court believes that modifying the custody arrangement would be in the best interest of the child after reviewing the evidence, it can make and enforce that decision, regardless of whether or not the other parent agrees.

How Bergen County Judges Handle Disputes

• The court may appoint a guardian ad litem
• Judges will review all medical, school, and therapy records
• Testimony from both parents may be required
• The child’s wishes may be considered, depending on their age and maturity

Contact Our Experienced New Jersey Firm

Here at McNerney & McAuliffe, we understand how upsetting it can be to learn that you have lost custody of your child in Bergen County. That is why our firm will do everything in our power to help you fight for the best possible outcome for you and your family. When you need help, contact our team today to learn how we can represent you during these difficult times.