The scene is not all that uncommon. Two people marry and have a child. The relationship ultimately breaks down and, for one reason or another, one parent leaves the home without the child and tries to establish a new place to live. If a custody order is entered during that time period, will a court consider the living situation of the parent who left the home in rendering a custody determination?
First and foremost, public policy in New Jersey favors relationships with both parents after separation/divorce, and that both parents share in the responsibilities in raising the child. In the eyes of the law, both parents are treated as equals. One aspect of a given situation that the court is to consider is the "stability of the home environment offered."
In Betancourt v. Spratley, the child’s mother left the primary home without the child, leaving him with the father. The husband filed an application with the court for custody, which was granted because the mother testified that she was essentially homeless at the time. The court told the mother, however, to file for a custody modification based on a "significant change in circumstances" when her living situation had stabilized. She ultimately did so one month later, providing as evidence her lease and a description of her roommates, living space and neighborhood. She also provided evidence that she had resumed employment and that her employer provided for child-care planning. The court, however, denied her requested relief.
On appeal, the Appellate Division concluded that the mother should not have had to prove a significant change in circumstances. Rather, considering the tumultuous circumstances surrounding the first custody order and the close time within which the mother filed to modify the custody arrangement, the Appellate Division found that the first order was really rendered to maintain the status quo for the child. As a result, the Court ultimately held that the the mother was entitled to a review of the custody situation under the factors listed in New Jersey’s custody statute (N.J.S.A. 9:2-4), and did not have to prove changed circumstances. Such a review was to include a look at how and when the mother could be in a position to demonstrate that she had achieved stability; she was to have the opportunity to mediate the situation and have her living arrangements investigated; and another proceeding was to be scheduled in the future to determine custody and parenting time issues.
The custody determination has at its heart the best interests of the child. A consideration of where the child will live is logically an important part of any custody determination made pursuant to New Jersey’s custody law. It is therefore critical that the parent establish that the home is a safe and loving place for the child to live.