Divorce is usually difficult, but divorce with children raises the stakes considerably – not only emotionally and financially, but also logistically. After divorce, your lifestyle and day-to-day priorities will be determined largely by the custody and parenting time, or visitation, arrangements with your ex. Most importantly, while parents have certain legal rights, New Jersey law cares more about the children’s best interests.

Best interests

Often people divorce because of conflict, which may motivate a parent to seek sole custody of the kids. However, New Jersey courts normally view contact with both parents as in the kids’ best interests. It usually takes something harmful like abuse or neglect for a New Jersey judge to think that a continuing relationship with a parent would not be in a child’s best interest. Even then, the judge may order supervised visitation instead of denying it altogether.

Who decides

New Jersey divorcing parents can negotiate these issues between them, usually with the help of each of their own experienced, knowledgeable divorce attorneys. If they can hammer out a marital settlement agreement finalizing custody and visitation, it will not be left to a judge who does not know the family to make these crucial decisions.


In negotiation of custody and parenting time, each party may not get exactly what they want because negotiation is all about compromise, but each will likely get an arrangement at least acceptable to them under the circumstances. If the court decides, an attorney can make an educated guess about what the judge will likely decide, but there are no guaranties.

Also, a marital settlement agreement must still be approved by the court as being in the children’s best interests.

Types of custody

Two kinds of custody exist in New Jersey:

  • Physical: With which parent will the child mostly live (the custodial parent or primary caretaker)? Normally, the other parent (the noncustodial parent or secondary caretaker) would then have scheduled parenting time or visitation with the child.
  • Legal: Which parent makes important life decisions for the child like those dealing with medical, spiritual, educational and similar issues?
  • Split: a rare arrangement that splits siblings up between the parents.

Either custody type can be jointly held by both parents or solely by one of them.


If the parties cannot agree on custody and visitation and the issues go before the court for decision, New Jersey rules require that the couple engage in mandatory mediation, a negotiation process facilitated by a neutral third party trained to help the parties come to a meeting of the minds. Sometimes the issues can be resolved in this way before they get to the judge. Court mediation is not an option in cases of domestic violence.

Important factors

In determining a child’s best interests in custody and parenting time arrangements, a New Jersey judge weighs many factors, including:

  • History of parental involvement.
  • Parents’ job demands.
  • Child’s age and number of siblings.
  • Parental cooperation.
  • Parent-child and child-sibling relationships.
  • Family violence.
  • Parenting ability.
  • Educational opportunities.
  • Child’s medical, safety and unique needs.
  • Child’s preference, if mature enough to determine.
  • And more.

Also, a New Jersey family law judge can order an investigation of the parents and their living situations with the resulting report available to help the judge make final decisions on custody and visitation.

Get legal advice

Anyone in New Jersey facing issues of child custody or parenting time should seek the advice and counsel of a skilled family lawyer.