Children and Divorce

Custody

A.    Generally

There are various statutes and Court Rules that address custody and related issues in New Jersey.  It is important for divorcing parents to understand that the state Legislature has found that it is in the best interests of children to have frequent and continuing contact with both parents after separation and divorce and that it is in the public interest to encourage both parents to share the rights and responsibilities of rearing their children.  The law in New Jersey also provides that the rights of both parents are equal.  The Court may accept any custody arrangement which is agreed to by both parents provided that it is not contrary to the children’s best interests.

If the parents are unable to agree upon custody, and the Court finds that custody is a genuine and substantial issue, the case must be referred to mediation.  If mediation is unsuccessful, the Court may then order an investigation or evaluation before the trial. 

Following the trial, the Court may enter an Order addressing both legal and physical custody, whether joint or sole; provisions for parenting time, provisions for major decision making, involving the children’s health, education and general welfare and may, under certain circumstances, restrict parents from permanently leaving the State of New Jersey with the children absent the consent of the other parent. 

B.     Factors That the Court Must Consider

In making a custody determination, the court shall consider but not be limited to the following factors:

1.       The parents’ ability to agree, communicate, cooperate in matters relating to the child;

2.      The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

3.      The interaction and relationship of the child with its parents and siblings;

4.      The history of domestic violence, if any;

5.      The safety of the child and the safety of either parent from physical abuse by the other parent;

6.      The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

7.      The needs of the child;

8.      The stability of the home environment offered;

9.      The quality and continuity of the child’s education;

10. The fitness of the parents;

11.  The geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation;

12.  The parents’ employment responsibilities; and

13.  The age and number of the children.

In a contested case, the Court may require each parent to submit a Parenting Plan, which the Court shall then consider in making its custody determination.

C.     Use of Custody Experts

In most contested custody cases, one or both of the parties are likely to retain the services of a “custody expert”, usually a licensed psychologist.  In some cases a joint expert is retained.  Routinely, the expert will meet with each of the parents, each of the children, the parents with the children, conduct relevant psychological testing, review documents provided by the parties and counsel and speak with other mental health professional (i.e. therapist for one of the children or parties) and other collateral witnesses (i.e. teachers, child care providers etc.)

Psychologists who perform custody evaluations are governed by the Guidelines for Child Custody Evaluations in Divorce Proceedings.                              See http://www.apa.org/practice/childcustody.html

The Court may also appoint a Guardian Ad Litem to represent the best interests of the child or children.  In addition to or in the alternative, the Court may also appoint counsel for the children if it appears that the children’s best interests are not being sufficiently protected by counsel for the parties.   The primary difference is that, while the Guardian Ad Litem must be primarily concerned with the child’s best interest, the Law Guardian or Court Appointed Counsel must advocate the child’s wishes for the Court’s consideration.   

D.     Use of a Parenting Coordinator

The New Jersey Supreme Court has approved a Parenting Coordinator Pilot Program in Bergen, Middlesex, Morris/Sussex and Union Counties.  A parenting coordinator is defined as

A qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated.  The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established and the parties cannot resolve these issues on their own.  The Parenting Coordinator’s goal is to aid the parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting.  The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so.  One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision making role without the need for outside intervention.  The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

See further materials on the Parenting Coordinator Pilot Program Implementation Guidelines at www.judiciary.state.nj.us .

 Child Support

A.    Generally

Child Support in New Jersey is governed by statute and the Child Support Guidelines.  New Jersey Court Rule 5:6A provides that:

[T]he guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court.  The guidelines may be modified or disregarded by the court only where good cause is shown.  Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that an injustice would result from the application of the guidelines.

See, www.njchildsupport.org for additional and important information regarding your child support rights and responsibilities.   See also, www.judiciary.state.nj.us.  

In all cases, the decision to deviate from the guidelines shall be in the best interests of the child and the specific reasons for doing so must be stated, in writing, in the support order or on the Guidelines Worksheet.

The Child Support Guidelines are to be applied to children under 18 years of age or more than 18 years of age but still attending high school or a similar secondary educational institution.  In determining whether continued child support for a child attending college and/or parental contributions to college education should continue, the Court must consider relevant case law and statutes at that time.  In all cases, primary consideration must be given to the continued support of minor children who remain in the primary residence by reapplying the child support guidelines for those children before determining parental obligations for the cost of post-secondary education and/or continued support for the child attending college.

B.  Expenses That Are Included In The Basic Child Support Award And Expenses That May Be Added To The Basic Child Support Obligation

The child support award includes the child’s share of housing, food clothing, transportation, entertainment, unreimbursed health care up to $250 per child per year and other miscellaneous items (i.e., hair cuts, books and magazines and cosmetics)

In the event that certain expenses are incurred in a particular case, they should be added to the Child Support calculation.  Such expenses include child care, health insurance for the child, predictable and recurring health care expenses and other predictable and recurring expenses such as private school costs.

C.  High Income Cases

      One exception to a strict application of the child support guidelines is a case where one or both parents are a high income earner.  The New Jersey Child Support Guidelines apply in cases with net weekly income of up to $4,420.  Beyond that, the Guidelines provide that the child support award at $4,420 represents the minimum basic support award.  The Court must add a discretionary amount of child support to the minimum basic award based upon the factors specified in the relevant statute and the remaining family income (i.e., that income which is in excess of the Guidelines).

The statutory factors are as follows:

1.       Needs of the child;

2.      Standard of living and economic circumstances of each parent;

3.      All sources of income and assets of each party;

4.      Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;

5.      Need and capacity of the child for education, including higher education;

6.      Age and health of the child and each parent;

7.      Income, assets and earning ability of the child;

8.      Responsibility of the parents for the court ordered support of others;

9.      Reasonable debts and liabilities of each child and parent; and

10. Any other factors the Court deems relevant.

Appendix IX-A (21) of the Child Support Guidelines provides additional factors that, if present, may require a deviation from the Guidelines.  

D. Modification of Child Support

Child support is always subject to review.   However, before modifying a child support award, the Court must find that there has been a change in circumstances of the parties since the date on which the last Order was entered.  (See Lepis v. Lepis, 83 N.J. 139 (1980)).  The Supreme Court in Lepis held that the passage of three years, in and of itself, amounted to a change in circumstances which would justify a review of the parties’ financial circumstances.  Other examples of changed circumstances include the child’s maturation and the attending increased costs; either party’s post-judgment inheritance or a substantial increase or decrease in one or both party’s incomes.

Child Support is also subject to a Cost-Of-Living Adjustment every two years pursuant to NJ Court Rule 5:6B, in accordance with the average change in the Consumer Price Index for the metropolitan statistical areas that encompass New Jersey and shall be compounded.  However, the obligor (the parent required to pay child support) may contest the proposed increase if the obligor’s income has not increased at a rate at least equal to the rate of inflation measured by the Consumer Price Index or if the order or judgment provides for an alternative periodic cost-of-living adjustment.

Generally, modifications of support may only be made prospectively.  However, there are a few exceptions including support that accrued after the child was emancipated; arrears which accrued after a change in custody and arrears which accrued while a motion for a modification is pending.