When you are interviewing an attorney: Bring the documents or agreements or Court Order's you want reviewed. Be proactive in seeking the right representation.
1. I don’t trust him/her with my kid(s), how can I prevent my kid(s) from seeing their other parent?
In Child Custody cases, unless you can prove abuse and neglect to the level that the State intervenes, your kid[s]’ other parent has a right to parent and the kid[s] have a right to be parented by both parents. Kids need the love and support of both parents, if you have a problem with the other parent, it is your problem, please do not make it the kid[s]’ problem too.
Your child should not be made a pawn, or subjected to having conflicted feelings to please you. Parental Alienation is real, a major part of child custody cases and it damages your child for his or her lifetime. You chose your child[ren]’s other parent, you must learn to share so that your child[ren] can have the benefit and love of both parents and are not hurt because the adults cannot, will not or refuse to get along.
2. I have other children from my new marriage or relationship, can I change my child support?
Yes, the birth of new child is a change in circumstances in child custody and child support cases, a triggering event that would influence the amount of child support that you are currently paying. Each state has a different way of calculating child support amount based on multiple family obligations.
In New Jersey it is called the Other Dependent Deduction. You need your new child’s other parent’s income: pay stubs, W2 and the most recent State and Federal Tax return in order to be able to receive credit from the Judge. You must file for the hearing and you will be able to have all the factors analyzed by the Judge to determine what is the appropriate amount of child support for your children based on your income, as combined with the income of the two other parents.
If you do not want to provide the income of your new child’s other parent the Judge will most likely deny your request. If you cannot provide the other parents income because he or she is deceased or there is some other reason that the Court deems to be beyond your control, then the Court will fashion a remedy that is appropriate for your situation. This is when the “ on a case by case basis” doctrine is applied in child support cases. Remember each child custody and child support case is unique.
3. The Judge said I need a Best Interest Report (BIR), who is going to do it and can I get my own report?
In child custody cases the Judge has to make a decision about who your child should live with if you and the other parent cannot agree. In New Jersey each parent has an equal right to custody of his or her child. During the marriage or if the parents are living together each has 100% simultaneous custody of their child. There is no primary care taker because the couple made parenting decision that work for their family and the Judge is not going to interfere with that self-definition unless asked to get involved. Once parents are on the road to separation if they cannot agree the Judge will make the call. 50/50 custody is becoming very common as each parent values their role in raising their child in two separate households. When the parents agree how they are going to parent after their separation, there is no need for a Judge to intervene. However, if they cannot agree, the Judge will use a special department in the Family Court System to investigate the living conditions for the child or children. In New Jersey that department in called Probation, an investigator will come to your old home, new home or go to the place you are planning to move, to see if the physical space is appropriate for a child or children to reside with you. The investigator will talk to you, get your background information, do a drug test if the Judge or a party requests it, look at your drivers abstract and do a criminal record check. The probation department will let the Judge know the results. You do not have to accept the results of that report, if you have the money, you may want to consider retaining your own expert. While this is an expensive proposition the question comes down to how much do you want your child to live and spend time with you and your extended or new family? If you only want to see your child every other weekend, and two weeks in the summer, then you probably don’t need your own expert. However, if you want to parent your child with a similar amount of time that you had prior to the break up, if you want 50% of Summer Vacation [4 to 6 weeks], if you want to split holidays and really be a part of your child’s life, then you need to be prepared to fight if the other parent does not agree. The fact that you are appearing before the Judge in a child custody is your clue that they other parent does not agree with you.
4. I'm paying alimony, but I think my Ex is now living with the person she or he is involved with what are my options?
First what does your divorce settlement agreement say? If it discusses co-habitation then you have to follow the procedure outlined in the divorce settlement agreement. If your divorce settlement agreement is silent on the issue of co-habitation then you have divorce case law protection and can file on that theory. It would be helpful in either event to have some proof, like a name or picture or P.I. report outlining the comings and goings of this co-habitant from your Ex's abode.
5. Is it true that mother’s have an advantage in child custody battles?
The short answer is no, parents are equal in New Jersey, but do not take my work for it, read the statute NJSA 9:2-4
The full answer depends on whether or not the mother is deemed the PPR [parent of primary residence].
Short Answer: If your child lives with you 5 or more days out of a 7 day week you are the residential custodial parent or PPR in a child custody case. The PAR [parent of alternate residence] can have zero to 49% of overnight parenting time out of a year. If a PAR has the child 50% of the time, then in the Court’s eyes there is no true PPR and in that child custody case so both parents are equal and you have a truly shared parenting relationship. Your child support guidelines, if child support is being paid out to either side, should say that it is the Shared Parenting Worksheet. If you are the PAR and have your child with you 29% of the time in a month, then your child support guidelines, should say that it is the Shared Parenting Worksheet and you should ask for those guidelines so that you are not paying too much in child support to the other parent because of the time your child or children are living with you.
(a)Typically, when women leave a relationship they take their child[ren] with them. If the father goes to Court within six months or less of the mother taking their child[ren] out of a joint residence, he can apply to have their child[ren] returned to him because they were taken from their home without his consent. Do not take my word for it, read the statute NJSA 9:2-2. Most of the time, men take no action or they consent because they don’t know their rights and that causes a shift in the parent of primary residence status. The father took no action to protect his rights thus he may have forfeited his status of being in 100% simultaneous residential custody.
(b)Typically, when men leave a relationship they leave their child[ren]with their mother. If the father and mother do not have a written divorce or child custody agreement and the father does not go to court to get a parenting time plan in place within a month or so of his departure, that gives him significant overnight parenting time then by taking no action he may loose a large portion of the parenting time he had. Again the key is to protect your rights in a divorce or child custody case.
(c) However, if a mother in a divorce or child custody case is the one to leave and she does not take her child[ren] and does not have a written agreement, then she will be in the same position as the father in (b) above, because she did not protect her rights. Remember in New Jersey both parents are deemed to be equal.
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