First, How is Child Custody Determined?
A family law judge in New Jersey will determine what is in the best interests of the child in awarding custody to either or both parents. It is possible for a mother, or a father, to lose custody entirely if it is in the best interests of the child.
In New Jersey there is no legal preference to award custody to a mother over a father.
Three Types of Child Custody
In New Jersey, custody can be summarized by these three possible arrangements: Joint, Split, and Sole Custody.
A married couple has this by default. The child lives with both parents, and both have the ability to make decisions about their child’s welfare.
It is common for parents to retain joint legal custody even if their child lives primarily with one of the parents. In New Jersey, this is the courts’ preference. The joint custody agreement must provide for the ways and means that the parents consult with one another regarding important decisions about their child’s welfare.
If the family has multiple children it is possible that the court could split them between the parents. This is rare, however. It does happen in exceptional cases such as when there are children from previous marriage or a significant age gap between children.
The reality is that some people just aren’t fit to be parents. Read on to find out the top five ways a mother, or father, can lose custody of their child.
What is the Difference Between Physical and Legal Custody?
In New Jersey, a parent has physical custody when the child resides with that parent. A parent has legal custody when that parent has the authority to make decisions about the child’s health and welfare. Physical and Legal Custody are often shared.
Ways a Mother Can Lose Custody of Her Child
If a mother, or a father, is determined to be unfit, they will lose custody of their child. An “unfit parent” is one who cannot provide a safe, secure, and nurturing home for the child. This lack of a secure environment puts the child at risk of suffering emotional, psychological, or physical harm. Leaving a child in that home is clearly not in the child’s best interests.
More specifically, a parent may be deemed unfit if he or she has been abusive, neglectful, or failed to provide proper care for the child. A parent with a mental disturbance, addiction to drugs or alcohol, or anger management issues may be found unfit if he or she cannot care for the child or puts the child at significant physical and/or emotional risk as a result. Also, a parent who violates court orders, relating to the divorce or not, or who engages in criminal activity will lose custody.
A risk assessment will be performed by the county probation office if a parent is alleged to be unfit. Any or all of the following are considered:
- Interviews with both parents;
- Interviews with other people important in the child’s life, such as teachers or grandparents;
- Home visits;
- school records showing excessive absences of the child;
- medical records that indicate a pattern of abuse of the child;
- psychological evaluations of the child to support emotional claims;
- drug and alcohol screening of the allegedly unfit parent, and;
- domestic violence reports indicating the parent’s anger issues or actual physical abuse.
1. A Parent Who Abuses the Child or the Co-Parent Will Lose Custody.
This applies not only to physical abuse, but to emotional or mental abuse. A parent found to be abusive can not only lose custody, but also the right to visitation (also called parenting time).
Emotional or Mental Abuse
The following will constitute abusive behavior that will cause a parent to lose custody, if a custody action is brought by the co-parent:
- Verbal abuse of child or of the co-parent in front of the child
- Parental alienation of the co-parent
- Physical or emotional abuse of the co-parent in front of child
- Withholding love or support from child
Physical abuse, including sexual abuse, of a child will result in loss of custody. It could also result in termination of all parental rights i the parent is convicted of a crime against the child.
How do I get emergency custody of a child?
If you fear that your child is in immediate danger in the care of your co-parent, you and your attorney can appear before the judge to request an emergency custody order. A judge will either issue a temporary custody order or remand the matter to family court as a non-emergent matter.
2. A Parent Who Commits a Serious Crime or Violates a Court Order Will Lose Custody
Conviction for Serious Crimes
If a parent is convicted for a crime against his or her child, he or she will lose custody. Conviction for murder, manslaughter, or aggravated manslaughter of a child – and aiding and abetting , conspiring, or soliciting someone to commit these crimes – will also result in loss of custody of the surviving children, not to mention termination of parental rights.
Violation of Court Order
If a parent violates the custody order, this can result in loss of custody if the violation is serious or pervasive enough. For example, if the custodial parent moves out of state without letting the court or the co-parent know, this is a serious violation of the child custody order that can result in loss of custody.
Violation of any other type of applicable order, such as a Final Restraining Order, can also be serious enough to warrant loss of custody.
3. A Parent Who Neglects the Child Will Lose Custody
Child neglect takes many forms. School personnel consider the following when reporting child neglect:
- Frequent absences from school
- Steals or begs for food or money
- Seems to lack medical or dental care
- Is consistently dirty and/or has body odor
- Insufficient clothing for the weather
- Abuses alcohol or drugs
- Says there is no one at home
A parent may be neglecting his or her child if he or she:
- Seems apathetic or depressed
- Is indifferent to the child
- Is abusing drugs or alcohol
4. A Parent Who is an Alcoholic or Drug Abuser Will Lose Custody.
If a parent is an addict, New Jersey Courts generally do not allow a child to remain unsupervised in that parent’s care. While an addict or alcoholic parent may not lose their parental rights entirely, it is likely that their parenting time will be supervised only.
In severe cases the court may order in-patient detoxification. Failure of a parent to comply with the court’s orders can lead to permanent termination of parental rights.
If a recovering parent can show that he or she is rehabilitated, he or she can apply to the court to reclaim their parental rights, either parenting time or some form of custody. A parent can show they are rehabilitated by providing proof of substance abuse therapy, attendance at Alcoholics Anonymous or Narcotics Anonymous, counseling, and clean drug or alcohol test results.
5. A Parent Who is Mentally or Physically Unable to Care for the Child Will Lose Custody.
If a parent is suffering from a mental disorder that puts the child at risk of harm or neglect, that parent may lose custody. If a parent has a physical malady that renders him or her unable to care for the child, such as if a parent is struck by a car and paralyzed and has custody of an infant, that parent may lose custody.
In both these cases a judge will look to whether the situation can be remediated by, for example, medication, or assistance in the home. Custody is never automatically lost. Rather, the court will weigh the best interests of the child with the parent’s right to parent that child.
Establishing Visitation, or Parenting Time
Unless the non-custodial parent is found to be abusive, the custodial parent must make arrangements for the child to have time with the non-custodial parent. The statues provide no guidance for what constitutes “appropriate parenting time”, and this is a frequent spark of litigation.
How is Visitation or Parenting Time Determined?
In New Jersey, visitation is a constitutional right of a non-custodial parent. A family law judges considers the following eight factors to determine if a parent should be awarded visitation with a child.
- The relationship between child and parent
- The relationship between the child’s parents, or the relationship between the person with whom the child is residing and the parent;
- How long ago the child last had contact with the parent;
- The effect that visitation will have on the relationship between the child and the parents (or the parent and the person with whom the child is residing);
- If the parents are divorced or separated, the time-sharing arrangement which currently exists;
- The good faith of the parent in filing the application for visitation;
- Any history of physical, emotional or sexual abuse or neglect by the parent;
- Any other factor relevant to the best interests of the child.
Before considering these factors, a judge first considers whether the parent was ever a primary caretaker of the child. If so, the presumption is that the parent is entitled to visitation unless factors like abuse are proven. If the parent was never a primary caretaker, the judge will consider the eight factors and render a decision by the totality of circumstances.
A Parent Who Lost Custody May Be Awarded Visitation or Parenting Time
A person who lost custody due to one of the five factors above can apply for visitation, however, that parent must show that he or she has been rehabilitated to prevail. Even so, a judge may order supervised visitation to ensure that the child is not put at risk.
If you are in New Jersey, the Law Office of Katherine K. Wagner can help you with your child custody or parenting time case. With understanding and compassion, Katherine Wagner will fight for your rights as a parent and provide the representation you need to protect your children. Contact her office today for a free consultation.