New Jersey family courts follow guidelines that keep the best interests of the child at the center of legal decisions, and the courts typically believe that children do best when both parents are involved in their lives. Custody does not usually become an issue until one spouse moves out or seeks an order for visitation prior to moving out.
If one spouse moves out and the children remain at home with the other spouse, a situation known as “de facto custody” has been created. Since there is no court order in place, the parent left with the children has custody. By moving out, there has been a precedent set with the court that effectively states that the spouse who left is comfortable with their kids remaining with the spouse who stayed. In situations like this, it is best for the parent who moved out to have as much visitation time with the children as possible since it is likely that the routine set during this time will influence the court’s custody decisions later.
Following a separation, the court can grant temporary custody and parenting time orders that will be in place until a divorce is final. If one parent is being unreasonable and denying the other parent sufficient time with their children, a judge will issue a court order mandating parenting time for the other parent.
Moving out and taking the children with you is typically not an option unless there is domestic violence or abuse involved. In that case, it is important for you and your children to find a place where you can be safe. You should also file a police report and work with a family law attorney to file for a temporary order that gives you custody. If you continue to leave your children in the care of an abusive spouse, the court could take it as an indication that you do not believe your spouse is dangerous.
Parents who are seriously considering divorce are advised to create a shared temporary custody agreement in writing and signed by all parties. This can be done by the parents alone, with the help of a mediator, or through each parent’s attorneys. The agreement should include the same provisions as a permanent custody agreement — determination of legal custody (sole or joint), a physical custody schedule, a visitation schedule, and detailed parental responsibilities.
You can rely on Cistaro Law to skillfully negotiate and mediate your issues to a satisfactory resolution. Should the need arise, you can also count on our experience for being aggressive litigators if the situation calls for a more assertive response. Contact us today for your free consultation.