Differences Between Legal Custody and Physical Custody in New Jersey

Whether or not you and your co-parent are on the same page about how you’d like to divide time and responsibility for your child, keep this in mind: child custody is not a one-size-fits-all situation.

Numerous elements go into determining a custody order, and situations and needs vary widely among different families. What Family A needs for their child to thrive may look very different from what Family B needs. Each set of circumstances is unique.

However, because of the many nuances involved, it is normal for parents to have lots of questions about what custody entails and how it works. One of the most common is how legal and physical custody differ from one another and how these differences might impact specific family situations.

Understand the basics of child custody

Simply put, child custody refers to both the legal and day-to-day relationship between a parent/guardian and their child. Custody determines who has the right to make decisions on a child’s behalf and who is responsible for their care.

For families that are intact, joint legal and physical custody is typically held by a child’s parents. However, when parents divorce, separate, or are not in a relationship, custody must be legally determined to protect their child’s best interests.

In New Jersey, custody falls into two main categories: physical custody, which relates to where the child resides, and legal custody, which encompasses the authority to make significant decisions affecting the child’s life.

What is legal custody?

Parents with legal custody of their child have the right to make major decisions for the child. These decisions might include, but are not limited to, those related to:

Education
Extracurricular activities
Healthcare care
Religious upbringing

Families should cover their expectations regarding these decisions in their child custody arrangement. The arrangement should also detail the parents’ decision-making authority, communication, and dispute resolution method, whether determined by a mediated settlement or a court order.

Working closely with an experienced child custody attorney is the best way to gain an understanding of the implications of different factors and what might work best in your family’s unique situation.

What is physical custody?

Physical custody refers to where your child lives, how much time they spend there, and which parent is responsible for the day-to-day.

A physical custody arrangement should outline:

The child’s primary residence
A parenting time plan, including weekends, holidays, etc.
Transportation and exchange logistics
Communication expectations

It should also discuss other practical considerations relevant to the specific situations of each individual family.

What do sole and joint custody mean?

As noted above, both legal and physical custody can be either joint or sole, depending on the circumstances of a given family. Let’s take a closer look at considerations for both.

Joint and sole legal custody

When parents have joint legal custody, each parent has a right to be involved in major decisions affecting their child.

On the other hand, if a parent has sole legal custody, they are not required to confer with the other parent regarding any decisions they make for their child.

Sole legal custody isn’t granted lightly; there are specific situations in which a court might grant sole legal custody. These situations include, but aren’t limited to:

Lack of parental fitness due to substance abuse, severe mental illness, or domestic violence
Parental absence
Inability to cooperate
Relocation

Sole legal custody may also be granted if both parents consent to it. This could be due to reasons such as professional obligations, geographical distance, or mutual understanding.

Even in these situations, however, it’s important to map out your custody strategy with the close advice of an attorney. They can help you clearly understand your options and negotiate an arrangement that protects your child’s best interests.

Joint and sole physical custody

In a joint physical custody arrangement, both parents are responsible for caring for their child. In this arrangement, the child spends significant time with each parent. This arrangement aims to ensure the child maintains a strong and stable relationship with both parents.

However, joint physical custody doesn’t require a precise 50/50 time split. Instead, it provides a schedule with substantial contact with both parents. The specifics of the arrangement, such as the division of weekdays, weekends, holidays, and vacations, are outlined in the agreed-upon or court-ordered parenting time plan.

On the other hand, sole physical custody means that the child primarily lives with one parent. That parent is responsible for their routine daily care and supervision. The other parent (the non-custodial parent) typically has parenting time rights, such as overnights, vacations, or holidays.

How the courts determine legal and physical custody

When parents collaborate to create a child custody agreement, they can determine what type of custody works best for their child. In fact, parents are encouraged to negotiate parenting plans that are in the best interest of their children.

The New Jersey family court system includes mandatory (but no cost) mediation for child custody matters to reduce the likelihood of a prolonged court battle and create a cooperative environment for parents.

However, when parents are unable to agree to custody terms, the court will determine a custody order based on the best interest of the child. N.J.S.A. §9:2-4 outlines the factors judges consider when determining what will be in a child’s best interest.

Those factors include:

The fitness of a parent to have custody of their child
The desire and ability of the parents to communicate and co-parent effectively in matters related to the child
The location of the child’s school
How close the parents live to each other
The child’s unique needs
Allegations or a history of child abuse, neglect, or domestic violence
The number of children in a parent’s home and their ages
The child’s reasonable preferences for custody
The desire to provide stability and continuity for the child
The safety and stability of each parent’s home

Judges may consider other factors they deem relevant to determining a child’s best interest.

What if I have sole custody and wish to relocate?

Parents with sole physical or legal custody may decide to relocate, whether for personal or professional reasons. For parents with child custody arrangements, it may be possible to relocate, but certain legal steps may need to be taken before making a move.

The specific steps involved depend on how much the move impacts the parenting time of the other parent. For example, if the move is simply a town over and won’t materially impact the other parents’ time, additional steps are typically unnecessary.

However, if the move disrupts regular parenting time by requiring a six-hour round-trip drive, you may need to seek permission from the courts.

Your child custody and parenting time plans are legally binding documents, which means you’re required to either follow their terms or seek a modification. In these situations, it’s important to have proactive discussions with your child custody attorney to ensure you have a clear plan in place well in advance of any decisions.

Consult with a New Jersey Child custody attorney

Child custody matters can be very complicated and emotional in family law. Our New Jersey child custody lawyers at Dughi, Hewit & Domalewski understand what is at stake. We will fight to protect your child’s best interest and your parental rights.

Contact Us Today!