Child Custody

The following article prepared by Maleski Eisenhut & Zielinski, LLC appeared in the April/May 2010 edition of Hunterdon County Woman Magazine:

The Challenges of Child Custody

Raising children is a challenge. The challenge is even more formidable when the parents are in the process of a divorce or are divorced. The parents address issues such as custody, parenting time, extracurricular activities, child support, and college tuition.

During The Divorce

During the divorce process, parents have to consider two main types of custody: legal custody and physical custody.

  • Legal custody can be defined as the role of the parents in the decision making process regarding their child's upbringing such as education, religion and medical decisions.
  • Physical custody addresses the issue of where and with whom the child will be living each day.

Parenting time is important for both parents. Parenting time allows each parent to spend quality time with the child so important parental bonds are not broken as a by-product of the divorce. A parent of alternate residence may still enjoy significant and meaningful parenting time with the child. The parents may have to agree to a holiday schedule. They may wish to ensure that the child has the opportunity to enjoy a holiday with each parent.

In New Jersey, an unemancipated child has a right to receive support from both parents. In addition, child support is a continuous duty of both parents. Child support is often calculated by the hearing officers, lawyers and judges with the use of the Child Support Guidelines. The Child Support Guidelines account for multiple factors in the calculation. For example, the parents' incomes, the number of overnight visits, and income taxes are just some of the factors that the Guidelines will factor into an award of support. The Child Support Guidelines may not always be appropriate to use, for example, when the parents' combined income exceeds a certain threshold. The parents may agree that the guidelines are unnecessary because they may have a child, who may require more support that what the guidelines compute.

Did you know that New Jersey is one of a handful of states that may require a parent to pay for college tuition post divorce? Often during the divorce process, the parents will agree on how they will pay, or what percentage they will pay, for the child's college tuition. Parents may decide to cap their contribution to college expenses to that of a New Jersey public university. Or the parents may limit what they pay by defining their obligation to the amount which is not paid for by student aid, grants, and scholarships.

After The Divorce

After the parties' have been divorced, a party may seek to change custody, child support or their college obligation. If a parent is seeking to permanently change a custody order or child support order, that parent would have to prove a "substantial and permanent change in circumstances." For example, a substantial and permanent change in circumstances may include one parent moving across state. One parent may have lost their job for a significant amount of time or have become disabled.


In situations where the parents cannot come to an agreement as to custody and parenting time the use of experts is sometimes needed. When parents cannot agree upon custody for their children, specially trained custody evaluators will generate a recommendation, which will be utilized by the Court should the case go to trial.

Parenting Coordinators

When parents are unable to communicate regarding parenting time issues, a parent coordinator may be used to resolve any day-to-day parenting issues that arise. In every case where the use of another professional is considered, the parties should carefully weigh the increased costs with their attorney against the potential benefit to the case.

The Process

In New Jersey, there are several processes to resolve issues related to child support and custody.

Parties may want to litigate their differences. This is the traditional method to resolve these issues. In litigation, parties may go to trial to resolve their issues of custody after filing a motion to change an existing order. The parties and their respective attorneys would appear before a Superior Court judge who would make a ruling once all of the evidence has been presented by both sides.

Parties may choose to mediate, to open up communications to deal with the issues without the necessity of court.

In 2009, the New Jersey Supreme Court ruled that the issues involving custody could be resolved through binding arbitration so long as certain conditions were met. Binding arbitration is a process where parties hire a private third party neutral arbitrator to make decisions based on the evidence presented.

Some parents choose to resolve the issues involving their children through Collaborative Divorce. This is a process whereby parents and their respective attorneys meet and work together to solve issues.

Contact Nadine Maleski at 908-237-9711 or online for help in understanding the challenges of child custody.