If you ask someone the first thing that they think of when you say “custody” they usually respond with “battle”. There is certainly a perception that custody is almost always a “battle”. While that can be true, it is not always the case.
In New Jersey, parents’ rights are considered equal unless they agree or a Court determines otherwise. There is very strong belief that the people best suited to determine their children’s futures in the face of a break up or divorce are their parents. After all, no matter who the attorneys, the experts or the Judge, no one will ever be more expert in their lives and their children than the parents themselves. That is why our legislature made clear that:
“it is the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.”
A child has both “the right and privilege…in getting to know, love and respect both parents…no court should permit either parent to interfere with the successful attainment of these facets of a child’s welfare.” Fiore v. Fiore, 49 N.J. Super. 219, 228 (App. Div. 1958). That is why Rule 5:8-1 requires that, unless there is an active domestic violence restraining order in place between the parties, they attend Court-ordered mediation.
Rule 5:8-1 provides that “In family actions in which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue, the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5” and that while mediation is pending, “the parties shall not be required to participate in custody evaluations with any expert” though they may agree to do so. The hope is that with the assistance of a neutral third party to act as a mediator, the parties can reach a mutually agreeable resolution of their custody and parenting time issues and no further Court involvement will be necessary.
Very often, that is the case. Mediation generally tends to be successful, but that is not always true. If custody or parenting time cannot be resolved at mediation what happens? Well, a lot of things, all steps on a course to a Custody Trial.
Under the Court Rules, if mediation does not succeed, the Court can then set a preliminary custody/parenting time arrangement pending trial, appoint custody experts, order custody evaluations, and can even order that an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family, the financial ability of the party to pay alimony or support or both, and the parties’ homes, including a description of the home where the child will reside or visit, appropriate child safety precautions in the home, number of household members and their relationship to the child, and criminal record checks for both parties.
Custody evaluations are expensive and time-consuming and can take a significant amount of time to conduct. Lots of litigants simply cannot afford a custody evaluation and go without. It is not uncommon for the Court to try custody cases without any experts for either party. It does not change the Court’s job, but it can make it a bit harder without the expertise of a recognized custody evaluator. Sometimes, after having gotten the custody evaluation completed, the parties are then able to reach a resolution of their matter without judicial intervention and they rely upon the evaluation as a guide to help them work it out between them.
That is not always the case, however. If custody/parenting time is still not resolved, it will eventually go to a Custody Trial. Family Court matters are bench trials, meaning there is no jury and the sitting judge assigned to the matter hears and decides the case. In doing so, the Court is required to exercise its authority to act in the best interests of the children which is defined as “the paramount consideration [of] the safety, happiness, physical, mental and moral welfare of the child” See also Terry v. Terry, 270 N.J. Super. 105, (App. Div. 1994); Unger v. Unger, 274 N.J. Super. 532 (Ch. Div. 1994); Ali v. Ali, 279 N.J. Super. 154 (Ch. Div. 1995).
N.J.S.A. 2A:34-23 and N.J.S.A. 9:2-4 then identifies the Court’s authority in making custody determinations. N.J.S.A. 2A:34-23 provides: