Child Custody and Visitation in Pennsylvania and New Jersey

child custody

Determining custody of minor children is often a very difficult and stressful situation for parents that are not together, whether it is through divorce or another form of separation.  Each state has its own statutory way of determining custody and visitation, which the Courts then interpret when creating a custody and visitation arrangement.  No matter the state, the general underlying principle in the statutes and Courts is “the best interest of the child.”  Each state has its own way of interpreting this principle, but the general underlying idea is the same.

Custody in Pennsylvania

Pennsylvania articulates seven (7) types of custody arrangements, which can be reached by agreement of the parties or through a Court Order after a hearing.  While Pennsylvania does not articulate a separate “visitation” arrangement, the Courts construe any partial, shared or supervised physical custody arrangement to mean visitation.  The types of custody are all based around the concept of physical and legal custody.  Physical custody means the actual physical possession and control of a child.  Legal custody means the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.  The seven types of custody arrangements in Pennsylvania include the following:

  • Shared Physical Custody – The right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.
  • Primary Physical Custody – The right to assume physical custody of the child for the majority of the time.
  • Partial Physical Custody – The right to assume physical custody of the child for less than a majority of the time.
  • Sole Physical Custody – The right of one individual to exclusive physical custody of the child.
  • Supervised Physical Custody – Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
  • Shared Legal Custody – The right of more than one individual to legal custody of the child.
  • Sole Legal Custody – The right of one individual to exclusive legal custody of the child.

                      See 23 Pa.C.S. §5322

Best Interest of the Child Factors in PA

When determining custody arrangements for a minor child, the Court uses the above mentioned “best interest of the child” to decide the arrangements between the parents.  In Pennsylvania, this means that the Court considers all relevant factors and but gives a higher level of consideration to the factors that affect the safety of the child.  There are seventeen (17) articulated factors that the Court looks at to determine custody arrangements between parents.  These factors include:

  1. Which party is most likely to encourage and permit frequent and continuing contact between the child and another party.
  2. The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which can better provide adequate physical safeguards and supervision of the child.
    1. 2.1      Information set forth in the statute (§5329.1(a)(a) and (2)) relating to considerations of child abuse and the involvement of protective services.
  3. The parental duties performed by each party on behalf of the child.
  4. The need for stability and continuity in the child’s education, family life and community life.
  5. The availability of extended family.
  6. The child’s sibling relationships.
  7. The well reasoned preference of the child, based on the child’s maturity and judgment.
  8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
  9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
  10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  11. The proximity of the residences of the parties.
  12. Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
  13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
  14. The history of drug or alcohol abuse of a party or member of a party’s household.
  15. The mental and physical condition of a party or member of a party’s household.
  16. Any other relevant factor.

                            See 23 Pa.C.S. §5328.

Modification of a Custody Order

It is important to note that custody Orders are not considered permanent because they are modifiable upon application to the court.  In Pennsylvania, the Court may modify an existing custody Order upon the petition of either party.  When a petition to modify is made, the Court again looks to what serves the best interest of the child to determine if the Order should be modified.  See 23 Pa.C.S. §5338

There are extensive statutory guidelines specific to modification of a custody Order for a proposed relocation of one of the parties.  See 23 Pa.C.S. §5337.  For an in depth look at relocation of a minor child when a custody Order is in effect, please see our previous article.

Custody in New Jersey

The New Jersey Legislature articulated in the New Jersey statutes, at §9:2-4, that it is New Jersey public policy to assure minor children of frequent and continuing contact with both parents if the parents are not together.  Further, it is in the public interest to encourage both parents to share the rights and responsibilities of child rearing.  For custody of a minor child in New Jersey, the rights of both parents will be considered equally in the proceedings and the Court will enter an Order to include the following types of custody:

  • Joint Custody – both parents have legal and physical custody of the minor child which includes:

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 making major decisions regarding the child’s health, education and general welfare.

  • Sole Custody – one parent has sole legal and physical custody of the minor child, with appropriate parenting (“visitation”) time for the noncustodial parent
  • Any Other Custody Arrangement the Court Determines to be in the Best Interest of the Child.

The Court will order any custody arrangement that is agreed by both parents unless the arrangement in contrary to the best interests of the child.  The Court may, for good cause upon its own motion, appoint a guardian ad litem or an attorney or both to represent the minor child’s interests in the custody proceedings.

Best Interest of the Child Factors in NJ

As in Pennsylvania, the New Jersey Legislature has articulated a number of factors for the Court to consider in making an award of custody of a minor child.  These factors all reflect the principle of the “best interest of the child.”  The Court considers, but is not limited to, the following factors:

  1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
  2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  3. The interaction and relationship of the child with its parents and siblings;
  4. The history of domestic violence, if any;
  5. The safety of the child and the safety of either parent from physical abuse by the other parent;
  6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  7. The needs of the child;
  8. The stability of the home environment offered;
  9. The quality and continuity of the child’s education;
  10. The fitness of the parents;
  11. The geographical proximity of the parents’ homes;
  12. The extent and quality of the time spent with the child prior to or subsequent to the separation;
  13. The parents’ employment responsibilities; and
  14. The age and number of the children.

The Court further notes that a parent will not be deemed unfit under the above factors unless the parent in question has engaged in conduct that has a substantial adverse effect on the minor child.

Modification of a Custody Order in NJ

As stated above, custody Orders are not considered to be permanent because they are modifiable upon application to the Court.  In New Jersey, the Court may, upon the motion of either parent, modify an existing custody Order.  Again, the “best interest of the child” is the controlling standard.  Each case is looked at on a case by case basis, in light of the factual circumstances in an individual case.  A.W. v. T.D., 433 N.J. Super. 365.

One such reason for a modification is a proposed relocation of the minor child by the custodial parent.  See our previous article for a more in depth discussion of relocation of a minor child in New Jersey.

An experienced family law attorney should be consulted for all questions or concerns about an ongoing or upcoming custody matter.  Please feel free to contact this office and meet with one of our experienced attorneys about any such questions or concerns.

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