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Who Will Get Custody of the Children in the Divorce

Posted on December 11, 2015

Many aspects of matrimonial law deal with the equitable distribution of marital property between the divorcing parties. However, when children are involved in the divorce, one of the most important issues deals with the custody and parenting time. In the State of New Jersey, the Law is used to protect the health and welfare of the child(ren). Although the Courts hope that divorcing parties can settle the issues of custody and parenting time in an agreeable manner, the Court ultimately has the ability to determine custody. Specifically, the Court is able to determine who will become the Parent of Primary Residence (formerly known as the Custodial Parent) and the Parent of Alternate Residence (formerly known as Non-Custodial Parent). In general, you do not want the Court to make this decision for you. It is best to present the Court with a mutually agreed upon plan.The Court can agree to the Plan or if the Parties to divorce cannot agree, the Court will make the decision.

There are many difficult issues to be solved when attempting to determine custody. This is where the knowledge and skill of an attorney is essential. A skilled matrimonial attorney will be able to negotiate a wide variety of terms which include, but are not limited to, alimony, equitable distribution of assets, custody, and parenting time schedules. Such negotiations may help to establish custody and a successful parenting time plan without the uncertainty that comes with leaving that decision up to the Court. A reasonable custodial arrangement and parenting time schedule can be established by having the parties’ attorneys meet and negotiate the issues.

In making a custodial determination, the Court looks to multiple factors to determine where the child most benefits, which is commonly referred to as the“best interest of the child standard”. Some of these factors include: the age of the child(ren), which parent is the primary caregiver, the parent’s ability to care for the child(ren), the child(ren)’s wishes (in the case of an older child), and the financial situation of the parties.After analyzing these factors, the Court may make a determination of sole custody to one parent, or joint custody to both parents. This may differ in certain circumstances, particularly between physical custody and legal custody. Physical custody refers to the parent’s right to have the child live with them, while legal custody refers to the parent’s right to make a decision with regard to the child, such as issues involving health and schooling. The Court may also create a parenting time plan,which allows the Parent of Alternate Residence to spend time with the child(ren). This usually is written out as a plan and involves the logistics of scheduling dates, times, and transportation of the child(ren).

In matrimonial matters,Azrak and Associates, LLC obtains the best result for our clients while crafting an agreement that is fair and in the best interest of the child(ren), which is a very important goal in the case of divorce. The law firm of Azrak and Associates,a full service law firm with 40+ years of matrimonial law experience,has as a goal to obtain the most favorable result within the bounds of the law. With the experience of our matrimonial attorneys, the parties can avoid Court intervention and implement a custody plan with direct input from the parties involved. In the coming editions of Azrak on the Law, we will continue to discuss different areas of the Law and how Azrak and Associates will be able to provide quality service to obtain the best result possible.

Have a Question: If you have a legal question or if you wish to have a free 30 minute consultation,you can submit it here or you can contact the author of this column at or at (973) 839-9062.

About the Author: Azrak &Associates. LLC staff attorneys are admitted to practice law in New Jersey, New York, and Washington,D.C. Azrak & Associates,LLC is a full-service general practice law firm located in Pompton Plains, NJ and Nyack, NY.

You must not rely on the above information as an alternative to legal advice from an appropriately qualified attorney. This post does not establish an attorney-client relationship. If you have any specific questions about any legal matter you may contact our office.

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