Ultimate Guide to

Child
Custody
and Support in a
New Jersey Divorce
P l a n n i n g t o P a r e n t S e p a r a t e l y, To g e t h e r :
Creative Approaches to Negotiation and Litigation

Attorney Tanya Freeman

(973) 359-5833 - TANYAFREEMANESQ.COM
 Ultimate
When a couple decide to divorce, their decisions rarely
affect them and them alone. When you divorce, you are
dismantling a nuclear family – that decision will ripple
through the rest of your family and your friendships.

Guide
Most importantly, it will affect the lives of your children.
To some extent, all of the decisions in a divorce – includ-
ing the division of property and assets – revolve around children, because both

to
spouses will want to prioritize their children’s stability. Both will need to work

Child
together to come up with creative solutions to child custody, honest agreements
about child support, and answers to all the other questions about parenting post-
divorce – including travel, extracurriculars, and educational costs – that put the

Custody
children’s interests first.

To do this, it will be necessary for both parties to approach the process ready and
willing to listen and to speak, to suggest, to debate, and to compromise. Having

and
an attorney that you trust to be as committed to your children’s wellbeing as you
are – and to foresee problems you won’t – is very important. However, there is

Support
no substitution for preparation. You’re entering a process that will shape the
rhythms of your children’s’ lives, and determine your ability to provide for them.
You need to think through the major issues you will address before you start the
process – whether that process takes you to mediation, negotiation, or litigation in

in
a courtroom.

a
New
C hi l d Cus t o dy
Jersey
When going through a divorce with children, the first issue you will need to resolve
is child custody. Child support in New Jersey is determined by child custody; and
Divorce
all other expenses not included in child support payments will, too, depend to
some degree on the custody arrangement. Start with the question of where your
children will live – with whom, and for what days each week, month, or year – and
work outward from there.
•
Tanya

Understanding Child Custody in New Jersey

New Jersey law recognizes two types of child custody:
Freeman

(973) 359-5833 TanyaFreemanESQ.com 1

Legal Custody: This pertains to a parent’s access to school and medical records.

Ultimate
New Jersey precedent prefers joint legal custody in all but extreme cases – for
example, when there has been a history of child abuse.

Physical Custody: This pertains to where the children will live. While it’s possible
to have a 50/50 physical custody arrangement, you have to think hard about the

Guide
feasibility of this option: complicating factors include the proximity of both par-
ents’ residences, career obligations, etc. Generally in New Jersey there will be
one “parent of primary residence” – the “custodial parent” – and one “parent of

to
alternate residence,” allotted a certain amount of time with the children. There are

Child
countless ways to split this time up, accounting for holidays, summers, weekends,
weekday dinners, and travel. While you have legitimate desires to be acknowledged
in these decisions, it’s important here, as with all other decisions directly pertain-

Custody
ing to the children, to put their interests first.

The Benefits of Mediation over Litigation

and
If you go to trial, a judge will decide what’s best. That means a judge could be decid-
ing what’s best for your children – and you’d have to abide by that decision. No one

Support
knows your children better than you and your spouse do. That means the question
of child custody is often best suited to mediation. Can you and your spouse work
together, with your attorneys, toward decisions that put your children’s interests
first? How will you handle holidays, birthdays, and other milestones? Where will

in
they go to school and where will they live?

a
New
When negotiating child custody, you need to think far into the future and be sure to
bring up every concern. With your spouse, you should discuss:

Jersey
» Your schedules and availability.
» Your expectations for the child’s religious upbringing and education. Divorce

» Your ideas for dividing weekends, holidays, and summers.

» Depending on your situation, you may also want to discuss any plans to
move out of the area or out of state.
•
Tanya

Be prepared to give and take, but don’t think of this as bargaining or bartering
(between the two of you). Instead, think of it as planning together toward a com-
mon goal: the upbringing of your children after the divorce.
Freeman

(973) 359-5833 TanyaFreemanESQ.com 2

In some situations – for example, where domestic abuse is involved – mediation

Ultimate
may not be the best course. In any case, you want an attorney you can trust to help
guide you – and your children – through the process of deciding child custody.

If left up to the courts, a judge will consider the following factors in deciding child
custody:

Guide
» The parents’ willingness to accept custody.

to
» The needs of the child.

Child
» The fitness of the parents – their ability to parent.
» The stability of each home environment.

Custody
» The parents’ ability to communicate and work together in matters
relating to the child.
» Any history of unwillingness to allow visitation (except in cases of abuse).

and
» Any history of domestic violence.
» The child’s safety and the safety of one parent from physical abuse by the

Support
other parent.
» The child’s preference, if the child is old enough to make an intelligent
decision.

in
» The interactions and relationship of the child with his or her parents and

a
siblings.

New
» The child’s educational needs (and the value of continuity).

Jersey
» The proximity of the parents’ homes.
» The extent and quality of each parent’s time spent with child before and
after the separation. Divorce

» The parents’ employment responsibilities and how this might affect their
ability to parent.
» The age and number of children.
•
Tanya
Freeman

(973) 359-5833 TanyaFreemanESQ.com 3

Fac t o r s

Ultimate
In f l ue nc i ng
Par e n t i ng Tim e

Guide
and Vi s i tat i on
Parenting time refers to the amount and distribu-

to
tion of time the children will stay with the parent

Child
of alternate residence. It’s important to remem-
ber that parenting time after a divorce is a fluid thing – there will be inevitable
interruptions to the schedule, and the children themselves will dictate changes as

Custody
their interests, needs, and desires evolve over time. In as much detail as possible,
though, you and your attorney should try to account for holidays, birthdays, vaca-
tions, and other special events in the settlement.

and
Handling the Holidays

Support
Divorces disrupt family traditions established over years. You want to keep that
tradition, but you have to share it with your former spouse. There are many cre-
ative ways to reach an agreement on how to share the holidays. Some are eas-
ier: Mom gets Mother’s Day and Dad gets Father’s Day, as well as the respective

in
birthdays. But what about Christmas Eve and Christmas Day? The eight days of

a
Hanukah? New Years? How will both parents get to share in the experience of their

New
children’s birthdays?

Jersey
It’s unlikely that you’ll get exactly what you want when holidays are shared. And
if you leave it up to them, New Jersey courts will almost always make parents
alternate. The complications of sharing holidays should be an inducement for you
Divorce
to go to mediation for this part of the divorce process. Coming to a cordial agree-
ment with your spouse will allow for more creative solutions, and be better for the
children.
•

Traveling Abroad with Children after a Divorce

Tanya

When one parent decides to take children on a trip abroad after a divorce, this
often leads to conflict, stress, and re-litigation. It’s best to anticipate this issue and
Freeman

come to an agreement in mediation. Can you anticipate reasons for the children

(973) 359-5833 TanyaFreemanESQ.com 4

traveling abroad – like family members in other countries? Is there a fear that one

Ultimate
parent might flee the court’s jurisdiction with the children? If you feel this way, you
should notify your attorney at the start of the divorce process, so your attorney can
inform the judge at the proper time. Consider, too, that both parents have to agree
before children can obtain passports. If your children don’t already have passports
and you anticipate wanting to travel abroad, make sure you broach the subject in

Guide
mediation, and try to avoid re-litigation.

Relocating to Another State with the Children after

to
Child
a Divorce
Relocating with minor outside of the State of New Jersey is one of the most diffi-

Custody
cult legal battles a divorced person, or person seeking divorce, can face. The court
considers many factors in response to a request to relocate outside of the juris-
diction, including the child’s ties to the community, any extended family members
who live in New Jersey, and how this move will impact the non-moving parent’s

and
custody and parenting time plan.

Support
One spouse wanting to move to Brooklyn from northern New Jersey is almost a
non-event. Although a court order is required, the process is much less difficult
than it would be if the contemplated move were from New Jersey to Los Angeles,
for instance. In all cases, the court will ask questions like these: How will you facil-

in
itate adequate parenting time for the non-moving parent? How will you maintain

a
the child’s family ties within New Jersey? What kind of plan can be established so

New
that the child can communicate with the non-moving parent? Could that other par-
ent move, along with the family, even though you’re no longer a cohesive family?

Jersey
It will never be as simple as, “I’m buying a plane ticket. I have a new job, and I’m
leaving the state of New Jersey.” Getting a court order that allows you to move
is a time-consuming process and, if you’re even contemplating such a move, you Divorce

should begin discussion with your attorney early on.

C hi l d S up p o rt
•
Tanya

A child custody decision in a divorce can leave the primary custodial parent with
the sudden burden of most childcare expenses. The obvious ones are education
Freeman

and healthcare, but you should also think about extracurriculars, sports and hob-
bies, travel, and, for older children, cars and car insurance. New Jersey uses two

(973) 359-5833 TanyaFreemanESQ.com 5

sets of guidelines, or “worksheets,” to calculate child support for single or joint

Ultimate
custodial arrangements. Still, you’ll want to consult an experienced attorney who
can help you think in the long term, anticipating changes to your child’s needs, and
ensure that your former spouse contributes a reasonable and equitable share.

Calculating Child Support in

Guide
New Jersey

to
New Jersey law provides two sets of guidelines –

Child
often called “worksheets” – for determining the
amount of child support. One worksheet is for a
“Sole Parenting” situation (in which one parent has

Custody
full physical custody) and the other is for a “Joint
Parenting” situation (in which both parents share
physical custody, though not necessarily 50/50).
These relatively simple worksheets factor in each parent’s income and the esti-

and
mated expenses of child care. They also account for the amount of time that a
child stays with each parent. The “parent of alternate residence” will always make

Support
weekly payments to the “custodial parent,” though these will be less the closer the
parenting time arrangement approaches to 50/50.

There are two important things to note here. First, the cost of raising a child gen-

in
erally increases as the child ages, but child support payments are fixed, and based

a
on an average of the costs spread across the estimated years until child support

New
payments end. This means that if you are receiving payments, New Jersey law
assumes there will be a surplus in the first years, and that you will save or invest

Jersey
this surplus to call on in the later years. Second, the worksheets do not account
for all of the expenses of raising a child. Health insurance, non-reimbursed medi-
cal expenses, private school tuition, summer camp, extracurriculars, and vaca-
Divorce
tions may not be covered. You should address these anticipated expenses with
your attorney and then with your spouse so that you can plan an equitable way to
cover them.
•

Emancipation and the Duration of Child Support

Tanya

Payments in New Jersey

Freeman

In New Jersey, child support payments do not automatically end when a child turns
18. The important age here is 19, but even this is not necessarily a trigger ending
child support.

(973) 359-5833 TanyaFreemanESQ.com 6

The obligation to pay child support in New Jersey ends when a child is “emanci-

Ultimate
pated.” This may be when a child turns 19, but the state law delays emancipation if
a child chooses to attend a college full-time. Emancipation could happen before a
child turns 19 if the child leaves the custodial parent’s house (presumably to start
a job and/or family).

Guide
Handling Child Care Expenses if Both Parents
Work Outside the Home

to
Child
If both parents are working outside the home, you’ll need to consider work-related
childcare expenses in any child support calculations. Daycare, for example, costs
a weekly set amount. Older children requiring care before or after school, or sum-

Custody
mer camp expenses, are slightly more complicated, but not hard to factor into a
settlement with the help of an experienced attorney.

Paying for Medical Expenses

and
Some spouses come into the divorce process with extraordinary out-of-pocket

Support
medical expenses – for example, a child might have autism, muscular dystrophy,
or some other condition or illness that requires regular attention, therapy, con-
stant medication, or special programs. These costs are steep but easy to predict,
as they recur on a regular basis and will have been well-documented before the

in
divorce process begins. Still, these expenses are over and above regular child sup-

a
port. It’s important that both spouses quantify these expenses early in the pro-

New
cess, to ensure that their children receive uninterrupted services, and to avoid
re-litigation.

Jersey
Paying for Private School Tuition
If your child has been enrolled in a private school for some time, the tuition will Divorce
be an important item to bring up to your attorney and to discuss with your spouse
before settlement. Recurring tuition payments will have been well-documented
and easy to calculate into the future.
•
Tanya

Complications arise with very young children who either have not started school
or who have been in a school for a short time. One parent might want that child to
attend a private school, while the other disagrees. Resolving these conflicts is sen-
Freeman

sitive and fact-specific – many factors determine whether the parent of primary or
alternate residence, or both parents, will be responsible for the decision, and for

(973) 359-5833 TanyaFreemanESQ.com 7

the payment of private school tuition. Seek the counsel of an experienced attorney

Ultimate
to help you work through these questions.

Paying for Extracurricular Activities

Extracurricular activities do not factor into the New Jersey child support guide-

Guide
lines. Whether your child takes piano lessons or plays an expensive and time-con-
suming sport like hockey, it’s important to discuss these costs with your spouse.
You have to think about the expenses – and how these expenses might grow as your

to
children move on to new or more involved activities – but this isn’t your only con-

Child
cern. What about lessons, practices, and big matches? Who’s going to transport
the child? Will you both attend? Can you emotionally handle attending together?
Don’t just think about these things – talk about these things, with your spouse and

Custody
your attorney, and put them into the final settlement agreement.

Far-Off Expenses: Cars, Driving Lessons, and

and
Insurance
Especially with young children, parents going through a divorce can forget about

Support
seemingly far-off expenses, like cars, driving lessons, and insurance. An expe-
rienced divorce attorney can help you plot out and think through these things in
advance.

in
When a child gets a learner’s permit, the car insurance for the household in which

a
the child primarily resides will go up significantly. Driving school will be an addi-

New
tional expense. Some parents also anticipate buying a child’s first car. You and
your spouse need to come to an agreement about these costs in advance, to avoid

Jersey
relitigating.

Planning for College Costs Divorce

College costs can be hard to address in a divorce settlement, because so many

factors come into play. College costs range widely depending on whether or not a
young person attends a private or public, in-state or out-of-state school. The total
•
Tanya

cost will range from tens to hundreds of thousands of dollars. One parent might
expect to pay all or part of a child’s college expenses, while the other might expect
the child to pay his or her own way through a degree.
Freeman

(973) 359-5833 TanyaFreemanESQ.com 8

New Jersey law, though, expects divorced parents to contribute to a child’s college

Ultimate
expenses, so long as the child has exhausted money from scholarships, financial
aid, and loans. If your child isn’t near college-age, you’ll still want to put a place-
holder in your settlement stating your intent. If you wish your child to go to a state
school, to attend your own alma mater, or to choose his or her own dream school,
and in any case expect your spouse to contribute to the cost, that might not be

Guide
enforceable, but you should still put your wishes into the official statement.

to
P utt i ng t h e C hil dre n ’s

Child
In te r e s t s Fi rs t as you
Navi g at e D i vo rc e

Custody
Modifying a Child Support Agreement

and
So much can change in a child’s life and in your own circumstances that could
make you want to modify a child support agreement. The most common reason

Support
clients seek to modify a child support agreement is the loss of a job. However, this
circumstance alone doesn’t mean that a judge will relieve you of your child sup-
port obligations. As a parent in New Jersey you are required to support your child
all the way through to emancipation. The considerations that would go into modify-

in
ing a child support agreement are fact-based and case-specific. If you’re wonder-

a
ing about the possibility of modifying a child support obligation, you should contact

New
an experienced divorce attorney.

Jersey
Living in the Same Home
During a Divorce Divorce
It’s possible and, in some cases, advisable
for spouses to continue living together during
the divorce process. The most obvious rea-
son is that it saves both money on household
•
Tanya

expenses, but it could also benefit the chil-

dren, providing stability, and giving them more
time to adjust to the idea of your divorce.
Freeman

(973) 359-5833 TanyaFreemanESQ.com 9

However, cohabitating can lead to serious and sometimes even dangerous com-

Ultimate
plications, compounding stress in an already stressful time. Have both parties
emotionally moved on from their former relationship? Is there acrimony that could
negatively affect either party’s emotional wellbeing, or the wellbeing of the chil-
dren? Seriously consider these questions before deciding whether you might con-
tinue to share a home during the divorce process.

Guide
There is no one solution to fit all divorce cases. You might move the children to
another location. The children might stay in the shared home while both parents

to
rotate occupancy, each keeping up another residence elsewhere.

Child
If one spouse has a history of violence, continuing to live together is totally inadvis-
able. In cases of violence, the court will order the violent party out of the home.

Custody
Handling Social Media Accounts During the
Divorce Process

and
Social media is not the place to litigate your case. Nor is it the right place to vent
your frustration against your spouse, the judge, your spouse’s attorney, or your

Support
own attorney. You gain nothing by venting, and you could do a lot of damage.

You don’t have to delete your social media accounts, but you should keep your

in
legal battle off the internet. This is especially important if you have young chil-
dren. Anything at all that you post is subject to be screenshotted, shared, and

a
commented upon. You don’t want your child exposed to that. You don’t want your

New
divorce to become a piece of gossip for your children’s friends and their parents.
While it’s important to be frank and open with your children, conversations about

Jersey
the divorce should happen in person, in your home, in a space that you control.

In high profile cases, a judge might legally bar you and your spouse from posting Divorce
anything about the case.

Domestic Violence and Child Abuse

•

If there is any history of domestic violence or child abuse, or if you have any fear
Tanya

of the same, you need to get yourself and your children away from the abuser.
If your children are the victims of abuse at the hands of your spouse or partner,
Freeman

call the police and/or Child Protection and Permanency (part of the New Jersey

(973) 359-5833 TanyaFreemanESQ.com 10

Department of Children and Families). Both police and CP&P will be obligated to

Ultimate
investigate your claim, and may take action to remove the abuser.

Understand that the children don’t have to be the direct victims of abuse to suffer.
Witnessing abuse, especially abuse perpetrated by one parent on the other parent,
can cause lasting psychological trauma. If you are the victim of abuse, you need

Guide
to end that abuse as much for your children’s sake as theirs. If you think that you
have insulated your children from the abuse, and that they do not know about the
abuse, you are probably wrong. They can sense the pain, tension, fear, and ani-

to
mosity in their home environment.

Child
Domestic violence is distinct from child abuse. In most cases under New Jersey
law, a victim of domestic violence must be 18 years of age or older, or an emanci-

Custody
pated minor who experienced one of the acts above perpetrated by:

A. A spouse.
B. A former spouse.

and
C. Any person who is part of his or her present or former household.

Support
New Jersey law defines domestic violence as the occurrence of one or more of the
criminal offenses listed in the Prevention of Domestic Violence Act of 1990:

»» Assault »» False imprisonment

in
»» Murder »» Lewdness

a
New
»» Kidnapping »» Criminal sexual contact
»» Terroristic threats »» Burglary

Jersey
»» Criminal restraint »» Criminal mischief
»» Sexual assault »» Criminal trespass Divorce

»» Harassment »» Stalking

The State of New Jersey mandates arrest if law enforcement officials take a crim-
•

inal complaint, seeing evidence of domestic violence. Officials may also seize any
Tanya

weapons in the alleged perpetrator’s possession for safekeeping, or if a court

grants the victim an order for the seizure of any specific weapon.
Freeman

The court may grant a victim an emergency protective order, including provisions
for:

(973) 359-5833 TanyaFreemanESQ.com 11

 »» Keeping the alleged perpetrator from the premises.

Ultimate
»» The seizure of weapons.
»» Preventing the alleged perpetrator from purchasing any weapon.
»» Granting possession of shared pets to the victim.

Guide
»» Giving the victim exclusive possession of the home.
»» Establishing a temporary child custody and parenting plan.

to
»» Ordering the alleged perpetrator to compensate the victim for any losses.

Child
»» Ordering the alleged perpetrator into counseling or a psychiatric
evaluation.

Custody
»» Prohibiting contact with the victim.
»» Requiring the perpetrator to pay the victim’s living expenses.
Not every protective order in New Jersey will contain all these provisions. The
nature and scope of the order will depend upon evidence available, the nature and

and
number of the alleged crimes, and the immediate needs of the victim and children.

Support
The order, along with any police or CP&P reports, could help you win a better
result in your child custody negotiations or litigation – which would ultimately be a
win for your children.

in
Protecting Yourself (and Your Children) from False

a
New
Accusations of Abuse

Jersey
Of course, some spouses use claims of domestic violence or child abuse are lever-
age to win more desirable terms. Far too often, spouses make entirely false or
exaggerated claims of abuse to get the opposite party out of a shared home, go
Divorce
get control of the children or of assets, to punish the other spouse, or to influ-
ence a judge’s decision. Unfortunately for the accused, the definition of “domestic
violence” is so broad that some false accusers have used accusations of “aggres-
sions” like late night phone calls to win convictions and orders of protection –
•

orders that violate the rights of the wrongfully accused, and could influence the
Tanya

legal outcomes of a divorce that will shape the rest of their lives, and their chil-
dren’s lives.
Freeman

(973) 359-5833 TanyaFreemanESQ.com 12

If your spouse has falsely accused you of domestic violence or child abuse, you

Ultimate
need to act quickly. Inform your attorney, who will be able to present evidence and
make a case for the dismissal of all charges at the hearing for your temporary
order of protection. Protect yourself and your children, and rely on experienced
counsel to defeat these false and malicious charges.

Guide
to
Child
Custody
and
Support
in
a
New
Jersey
Divorce
•
Tanya
Freeman

(973) 359-5833 TanyaFreemanESQ.com 13