Parenting time–formerly referred to as visitation–is generally best resolved between the parties, without Court intervention. To be sure, the parties’ lawyers will do their best to broker a deal or fight for the parenting time sought by their clients. Likewise, judges will make a call if they have to. But in my opinion, the parties themselves are best equipped to work out a reasonable parenting time arrangement. After all, it will be the parties who, along with their children, will be implementing the parenting time arrangement into the fabric of their daily lives.
Accordingly, the parties should recognize and work towards the best interests of their children. Ideally, they will push aside their own differences and work towards a quick resolution of the parenting time issue. Again, one that is in the best interests of their children. New Jersey Parenting Time Law itself is grounded in the belief that: no “stranger in a black robe” will be better equipped to resolve intimate family matters than the parties themselves.
Custody will determine which party is the parent of primary residence (physical custody) and which party is the parent of alternate residence. New Jersey law generally favors liberal parenting time with the parent of alternate residence, so that the children will maintain a post-divorce relationship with both parents. Exceptions to this general rule do exist, such as when parenting time would not be in the best interests of the children. One such instance is when the parent of primary residence has a history of abuse or domestic violence. Even then, however, the Court’s generally favor restrictions on parenting time (such as requiring that parenting time be supervised) to denying either party parenting time altogether.
One of the seminal New Jersey parenting time cases is McCown v. McCown, 277 N.J.Super. 213, 218 (App. Div. 1994). The McCown Court stated that children have a right to a loving relationship with both parents. The parent of primary residence generally has a responsibility to foster and develop the relationship between the parent of primary residence and their children. The parent of primary residence may therefore be sanctioned if he or she attempts to alienate the children from their other parent.
It should be noted that parenting time rights are generally only guaranteed to the actual parents or guardians. Outside parties generally have no legal right to parenting time, even when those outside parties are non-guardian grandparents. It should also be noted that parenting time is not contingent upon the payment of child support. This is a rule that tends to be quite divisive depending upon your point of view.
Parenting Time Agreements
In New Jersey, parenting time arrangements may be determined by the Agreement of the parties or by the Court. Either way, the disposition of this issue must be made in the best interests of the parties’ children.
Most Courts and family law attorneys alike will look to a traditional parenting time arrangement to provide a basic framework for parenting time. Negotiations will then focus on modifying the Agreement to reflect the wishes of the parties. The parent of alternate residence is generally given alternate weekends for overnights, along with an evening or two each week. Specific holidays can oftentimes hold-up an otherwise done deal.
Holidays are generally alternated between both parents based upon even and odd years. For instance, if the Father had the children for Thanksgiving in odd years, then the Mother would have the children for Thanksgiving in even years. The parties can enter into an Agreement for parenting time/custody as part of the Marital Settlement Agreement or as an independent Consent Order prior to the ultimate disposition of the case. This Agreement would then be embodied and/or incorporated into the Marital Settlement Agreement.
Either party may, at essentially any time, move for a modification of the present parenting time arrangement. If the parties cannot agree upon a post-judgment modification, then the party seeking the modification will often file a Motion. The party filing the post-judgment Motion must first establish a change in circumstances. Then, he or she must also prove that the modification would be in the best interests of the parties’ children.
Parenting time issues can be one of the most contentious parts of the divorce. Luckily, in many instances the parties can work together (through their attorneys, during mediation, or on their own), to create an amicable resolution of the parenting time issue.
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