Child Custody – NJ & NY
CUSTODY OF CHILDREN - NJ
The State of New Jersey’s Laws on Child Custody are codified at NJSA § 9:2-3 & 4:
9:2-3. Custody of children of parents living separately; powers of court.
9:2-3. When the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as concerning a minor child whose parents are divorced.
Until the court determines the final custody of the minor child and unless the parties agree otherwise, the court shall determine temporary custody based upon the best interests of the child with due regard to the caretaking arrangement that previously existed.
No child shall be taken forcibly or against the will of the parent having custody by the other parent without a court order.
If the child has not, at the time of the commencement of the action, reached the age of 16 years, and if it is represented to the court by affidavit or under oath that evidence will be adduced involving the moral turpitude of either parent, or of the minor child, or that evidence will be adduced which may reflect upon the good reputation or social standing of the child, then the court shall admit to the hearing of such case only such persons as are directly interested in the matter then being heard.
The records of such proceedings, including all papers filed with the court, shall be withheld from indiscriminate public inspection, but shall be open to inspection by the parents, or their attorneys, and to no other person except by order of the court made for that purpose.
Amended 1948, c.321, ss.3,11; 1953, c.9, s.3; 1990, c.26, s.1.
9:2-4 Custody of child; rights of both parents considered.
9:2-4. The Legislature finds and declares that it is in 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.
In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include:
a. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include:
(1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and
(2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare;
b. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or
c. Any other custody arrangement as the court may determine to be in the best interests of the child.
In making an award of custody, the court shall consider but not be limited to the following factors:
the parents' ability to agree, communicate and cooperate in matters relating to the child;
the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
the interaction and relationship of the child with its parents and siblings;
the history of domestic violence, if any;
the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child;
the stability of the home environment offered;
the quality and continuity of the child's education;
the fitness of the parents;
the geographical proximity of the parents' homes;
the extent and quality of the time spent with the child prior to or subsequent to the separation;
the parents' employment responsibilities; and
the age and number of the children.
A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.
The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child's interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties to the litigation.
d. The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.
e. In any case in which the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody.
f. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents.
Amended 1948, c.321, ss.4,11; 1974, c.143; 1990, c.26, s.2; 1997, c.299, s.9.
9:2-4a Best interest of child primary consideration.
4. Notwithstanding any other provisions of law to the contrary, in any action concerning children undertaken by a State department, agency, commission, authority, court of law, or State or local legislative body, the best interests of the child shall be a primary consideration.
L.2015, c.255, s.4.
CUSTODY OF CHILDREN - NY
Child Custody in NYS is controlled by DRL § 70, DRL § 240(1) (and just a tiny Sliver by DRL § 240(1-c)) and by the relevant Case Law.
This is DRL § 70:
“ § 70. Habeas corpus for child detained by parent.
(a) Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court;
and on the return thereof, the court, on due consideration,
may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order.
In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly. *** ”
DRL § 240(1) contains a lengthier enumeration of a variety of procedural provisions, but is equally devoid of delineating what actually constitutes the Best Interest of the Child.
That is a fairly skeletal Statutory Framework. All of the other Criteria for Child Custody is found in the relevant Case Law.
The Controlling Cases on Child Custody in NYS are two (2) 1982 Cases from the Highest Court in our State, the Court of Appeals: Eschbach v. Eschbach, 56 NY2d 167 (1982) and Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982). Unfortunately, these two cases, while explicating the Factors for Determining Custody in NYS, do not do so in a well-organized fashion.
The NYS Courts, on their Website, have reduced these Custody Factors to a concise List of 8:
1. -------------- Which parent has been the main care giver/nurturer of the child;
2. -------------- The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child's special needs, if any;
3. -------------- The mental and physical health of the parents;
4. -------------- Whether there has been domestic violence in the family;
5. -------------- Work schedules and child care plans of each parent;
6. -------------- The child's relationships with brothers, sisters, and members of the rest of the family;
7. -------------- What the child wants, depending on the age of the child; and
8. -------------- Each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so.
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