Child Custody Law in New Jersey: Overview 

It perhaps goes without saying that custody disputes can be both expensive and emotionally draining.  In 1992, the Appellate Division Court even hinted at the judiciary feeling somewhat uncomfortable with deciding custody disputes.  Specifically, in Tahan v. Duquette, 259 N.J. Super 328, 336 (App. Div. 1992), the Court wrote the following regularly cited opinion:

We urge the parties to understand that courts in any jurisdiction are poor places to resolve such fundamental relational problems as child custody. Rules of law and procedural strictures are no substitute for personal choices in so intensely personal an issue. Parents who have divorced are frequently unable to communicate constructively on issues of importance; so they look to the legal system to resolve their problems. But no stranger in a judicial robe, however able and well motivated he or she may be, is equipped to make a decision as valid as the parents working together might make.

But be that as it may, there are few if any elements of a divorce that are more important than protecting the best interests of the parties’ children.

Best Interest’s of the Children Standard

The analysis of most child custody disputes in New Jersey starts and ends with a simple but hard to define standard: “The Best Interests of the Children.”

The best interests of the parties’ children standard may involve some of the following arguments:

  • Where will the child receive the best education?
  • Where will the child be safest?
  • Which party can provide the “better” living conditions?
  • Which party is more nurturing?
  • Where will the child have the best chance to excel?
New Jersey child custody decisions should be made with the “best interests of the parties’ children” in mind.  But let’s backtrack for just a second.  By now you may be wondering, how is custody defined in New Jersey, anyway?
Custody Types
Under New Jersey Law, there are two basic types of child custody:
1) Legal Custody; and
2) Physical Custody.

New Jersey law favors joint “legal custody”, whereas joint “physical custody” is exceedingly rare.   See: Pascale v. Pascale, 140 N.J. 583  (1995).

Legal custody includes the right to make important decisions regarding the child, such as those decisions involving health and education.

As its name implies, physical custody assigns which parent will have the child the majority of the time.

Often times, however, the non-custodial party will still be granted a significant amount of parenting time.   The amount of overnight parenting time also plays a role in determining New Jersey child support awards.

Gender and Custody

New Jersey has largely become gender blind when determining custody (except perhaps when a child is very young).  That said, for a variety of reasons, women are still granted physical custody of the children the majority of the time.  It should be noted, however, that the amount of father’s being granted primary physical custody of their children appears to be increasing.


New Jersey Child Custody Decisions are Always Subject to Review and Modification, in the best interests of the child (if a change in circumstances is first demonstrated).*

Often times, custody decisions are consented to by the parties as part of the divorce or as a separate Custody Agreement in conjunction with their divorce proceedings.  Until a child is an adult, however, custody issues may persist and/or be revisited upon either party’s request.


If the parties cannot resolve their custody issues, then the issue will likely have to be litigated.  As part of a child support litigation, there will likely be outside experts called in to assist the Court in determining which living arrangements are in the best interest of the parties’ children.  Issues of parental fitness will play a larger role than the preference of the child, particularly if the child is younger.

As the block quote above about the “stranger in the black robe” demonstrates, the Court will likely push parties’ toward mediation.  New Jersey Child Custody cases are very fact sensitive.  In most instances, our firm will recommend mediation efforts to our clients, while viewing litigation as a last resort should mediation or other attempts at an amicable resolution fail.


In future posts, I will explore New Jersey Child Custody disputes in even greater detail.

*This analysis is not the same if a Judge finds a “De Facto” Change in Custody.

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

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