Posted on July 2, 2009 by Robert A. Epstein

PHYSICAL AND LEGAL CUSTODY DETERMINATIONS - LOOK AT THE FACTS

Custody disputes are often the most emotional part of any divorce litigation.  Determining what the physical and legal custodial arrangement will be is a fact-specific analysis that puts at the forefront the best interests of the child.  While both parents start out with a presumpton of equal rights in a custody proceeding, fostering a child's relationship with both parents is of utmost importance, as is encouraging both parents' involvement in raising the child. 

N.J.S.A. 9:2-4(c) provides for several factors that a trial court must consider in determining whether to award joint custody, sole custody or an alternative that works in the child's best interests.  These factors include, but are not limited to, the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody; and the needs of the child.  The Appellate Division recently addressed these factors in the context of a physical and legal custodial dispute in Elliott v. Prisock-Elliott, decided June 2, 2009. 

For a joint physical and legal custodial arrangement, the New Jersey Supreme Court has held that the children must recognize both parents as sources of "security and love," with a desire to continue both relationships; both parents must be fit and willing to accept custody; and the parents must demonstrate a "potential" for cooperation analyzed outside of the divorce context.  A parent involved in such a dispute should understand, though, that he or she need not have been as involved as the other parent in the child rearing process for joint custody to be appropriate. 

Specifically as to physical custody, a court will also look at those factors focusing on the financial ability of the parents to provide adequate care in two homes; geographic proximity of those homes (looking at interference with schooling, the children's access to friends and relatives, and traveling between the two locations); demands of employment; and the age and number of children involved. 

The New Jersey Supreme Court has determined that, where joint physical custody is not appropriate, the court should consider awarding joint legal custody and physical custody to only one parent with "liberal visitation rights" to the other parent.  This way, both parents keep their decision-making roles as to the children and, as practicable, the non-custodial parent maintains a level of companionship with the child provided by joint physical custody.

Based on these considerations, the Appellate Division in Elliott affirmed the trial court's decision rejecting the father's proposal for joint physical custody, assigning sole physical custody to the mother, since the father failed to provide sufficient evidence regarding the joint physical custody considerations outlined above.  The sole custody arrangement was also deemed to be in the children's best interests since the mother was primarily responsible for the care and development of the children during the marriage and was most familiar and better able to address their medical, educational and social needs.

Interestingly, however, as to trial court's decision granting sole legal custody to the mother, while the Appellate Division affirmed the trial court's conclusion that the parents could not cooperate for the children during the divorce proceedings, it found that the trial court failed to adequately consider the importance of establishing a custodial plan that would maintain and foster the father's relationship with the children. 

Specifically, the Appellate Division noted the trial court's failure to consider years of parental cooperation prior to the divorce proceedings; failure to appreciate in its determination the mother's enrollment of the children in a before-school program that limited the father's parenting time; and the mother's preference for eliminating the father's parenting time entirely where there was evidence of the father abusing the children.  As a result, the Appellate Division remanded to the trial judge on the issue, allowing the parties to submit evidence on the legal custody issue.

As described above, physical and legal custody determinations are highly fact-specific considerations ultimately decided upon a review of the statutory factors, always with the best interests of the child at the heart of any determination.
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Posted on April 29, 2009 by Eric S. Solotoff

WHO CHOOSES THE CHILDREN'S RELIGION? THE ANSWER IS EASIER THAN YOU THINK

In this day and age, marriages involving people of different religious in no longer uncommon.  In some of these families, the parties choose one religion to raise the children in.  Sometimes even, one parent converts to the other's religion.  In other cases, the parties and the children observe both religions.

The question is what happens when the parties divorce?  What happens if one parent converts to another religion post-divorce and wants the children to similarly convert.  Though it seems as though this would be a complicated issue, in reality, the answer to the question is relatively easy. 

Specifically, under NJ law, the primary caretaker has the right to determine the religious upbringing of the children in their custody and courts will not interfere in that parent's decision regarding religious training for the children.  The policy behind this judicial reluctance to interfere with the religious training of children is that it is in the best interests of the children that the custodial parent be allowed to determine their religious upbringing. 

This principle was confirmed by the Appellate Division in a case where the parties were Protestant and raising the children in that religion before the divorce.  After the divorce, the mother converted herself and the children to Orthodox Judaism.  The mother, however, was not allowed to use the religion to interfere with the father's time with the children.  Moreover, the father could expose the children to his religion when they were with him but was not allowed to educate them in his religion.

Simply put, the custodial parent can determine the children's religion - the non-custodial parent can expose, but not formally educate the children in that parent's religion. 

The Court's have been clear that this has nothing to do with the preference of one religion over another. Rather, it is consistent with the law in general that gives custodial parents final say in decisions regarding children, even where there is joint legal custody, because that parent is presumed to know more about and be more in tune with what is in the children's best interests.  This principle has been applied to disputes ranging from religion to those involving elective medical procedures such as a nose job. 

While this issue does not come before the Court all that often, as noted above, the law is well settled in this area and pretty straight forward.

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