Category Archives: Physical Custody
If a previous custody resolution process like an assessment or mediation yields no solution, the court may order a full child custody evaluation at the parents’ expense. Parents may agree to a single evaluator or each retain their own separately, and the court may also order a neutral evaluator.
In Watkins v. Nelson, 165 NJ 235 (2000), a fight developed between the grand parents and the father after the mother of child, who was the custodial parent, had died. The New Jersey Supreme Court found that NJSA 9:2-5 addressed the custody of a child after the death of a custodial parent. A presumption exists in favor of the custodial-parent but that presumption can be overcome by a third party, such as a grand parent. However, the presumption can only be overcome if it is shown that the natural parent is unfit, has abandoned the child, is guilty of gross misconduct or there are other exceptional circumstances. At that point, then the court will have to look at the best interests of the child.
Gone are the days where the man would not get custody of a child. However, men still face a problem with babies and young children. The tender years doctrine stated that women would get custody of young children. I don’t think you’ll fine New Jersey judges citing to this as it is probably not the law anymore. I say probably not because there are conflicting opinions. However, men still face big hurdles when seeking custody of newborns. While more women work, it is more common that the mother may me out of work and the father would be working. All things being equal, courts will likely side with the mother. Compounding this problem for fathers is that only the mother can breastfeed. Of course, formula is an option but if the decision is made to breastfeed the child every day, the father will have to work harder to get custody. Of course, this doesn’t mean its impossible; its just a reality men have to deal with.
When parents split up or separate prior to the divorce being final, a number of problems often develop with regard to who will have custody and the parenting time for the other child. Without a court order, there is a wild west situation. Court order grant rights to both parents so without one, there are no real rights. There is nothing for the police or the court to enforce. Thus, parents who separate and operate without a custody order is asking for trouble. We have seen clients operate without a custody order for 5 years and then when there is a problem, there is nothing to enforce.
Of course, courts will generally go with whatever the custody arrangement has been in the past but this can be tough to show when both parents lived together and both worked. Thus, the lawyer for the client seeking custody will have to get into the details of who did what for each child.