New Jersey’s public policy is that children have frequent and continuing contact with both parents.¹ Based on the best interest of the child, a judge can order any of the following:

• joint legal custody, which is when both parents will make major decisions regarding the child’s health, education, and general welfare.² This can be ordered even if only one parent has physical custody. Joint legal custody usually involves the parents talking with each other and making decisions jointly. Since cases of domestic violence involve control, fear, and an imbalance of power, joint custody usually is not a good option;
• joint physical custody, which is when the child lives with each parent for a period of time but it doesn’t necessarily mean that each parent has equal time;³
• sole legal custody, which is when only one parent is able to make major decisions for the child;
• sole physical custody, which is when the child primarily lives with one parent. The other parent will likely still have scheduled parenting time;⁴ or
• any other custody arrangement the judge believes is in the best interest of the child.⁵

​¹ N.J. Stat. § 9:2-4
² N.J. Stat. § 9:2-4(a)(2)
³ N.J. Stat. § 9:2-4(a)(1)
⁴ N.J. Stat. § 9:2-4(b)
⁵ N.J. Stat. § 9:2-4(c)

In New Jersey, when you file for divorce and there are issues of custody, visitation or support of your child, a judge may make you attend the “Parent’s Education Program.” This program addresses issues about how separation or divorce will affect you and your child. The program also encourages you to work together with the other parent to raise your child.¹

If you have been a victim of domestic violence, it is very important that you let the judge know, because this program may not be appropriate for you. You will not have to complete the program if you have a temporary or permanent restraining order against the other parent. However, even if you don’t have a current restraining order, the court may excuse a party from attending the program if the court finds good cause to do so. ²

¹ N.J. Stat. § 2A: 34-12.3
² N.J. Stat. § 2A:34-12.5(d) & (e)

Some people decide not to get a custody order because they don’t want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent.

Getting a custody order can give you:

• The right to make decisions about your child
• The right to have your child live with you.

If you decide not to get a custody order, then you and the other parent likely have equal rights to making decisions and living arrangements. The exception to this is when paternity has not been legally established.

There are multiple ways that paternity (legal fatherhood) can be established in NJ. Here are some of the most common ones:

• The child is born during the marriage or within 300 days after the marriage ends;¹
• The father signs a Certificate of Parentage before or after the birth of a child, and it is filed with the appropriate State agency;
• By a court order, which may be based on genetic (DNA) test that says there is a 95% or more chance that he is the father.²

However, since there are other ways that paternity may be established, you may want to contact a lawyer for more information. See our Finding a Lawyer page for lawyers in NJ.

¹ N.J. Stat. §9:17-43(a)(1)
² N.J. Stat. §9:17-41(b)

When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the best interest of your child. Generally, the court will try to make sure that both parents share the rights and responsibilities of parenting. This means that it tries to let both parents play an active role in taking care of your child and making decision s about your child’s life. The court will base its decision on many factors. Some of the things a judge will consider are:

• Both parents’ ability to agree, talk with one another and cooperate about issues relating to your child;
• Whether you and the other parent want custody;
• If either parent has refused to let the other parent see the child. However, a judge won’t take this into consideration if you prove that you denied access because you or your children were being abused;
• Your child’s relationship and interactions with both parents and any siblings. The court tries to make sure children will have an ongoing relationship with their brothers and sisters;
• The number of children involved and their ages;
• The history of domestic violence, if there is one;
• The safety of your child and of either parent from physical abuse by the other parent;
• Which parent your child would rather live with, if s/he is old enough to make an intelligent decision;
• What your child’s needs are;
• How stable both parents’ homes are;
• The quality and continuity of your child’s education-in other words, whether your child would have to change schools, and how good of an education s/he will receive;
• The general fitness of both parents;
  • Generally speaking, the court looks at the character, habits, and physical and mental condition of both parents to see whether it thinks you are “fit”;
• The distance between the parents’ homes;
  • Usually, the court will consider how far the distance is between both parents’ homes and whether either parent plans to move out of state;
• How much time and the quality of the time that both parents spent with the child, before or after you split up;
• Both parents’ employment responsibilities;¹ and
• If either parent did not participate in the Parent’s Education Program, which may be ordered in cases involving divorce² (discussed in the next question).

¹ N.J. Stat. §9:2-4(c)
² N.J. Stat. § 2A:34-12.5(c)

If a parent was convicted of any of the following crimes, the judge will assume that the parent should not be granted custody or visitation of your child:

• sexual assault;
• aggravated criminal sexual contact;
• criminal sexual contact; or
• endangering the welfare of children.¹

However, the convicted abuser could try to convince the judge that the best interest of the child is to allow custody and visitation. If the abuser shows clear and convincing evidence, the judge may allow custody or visitation rights.¹

Note: Being denied custody and visitation will not automatically end the abuser’s parental rights or child support responsibilities.² If there is any proceeding to establish or enforce child support, you will not have to be in the same room with the abuser if you were the victim of the crime for which the abuser was convicted. In addition, your child’s location should be kept confidential.³

¹ N.J. Stat. § 9:2-4.1(1)(a), (1)(b)
² N.J. Stat. § 9:2-4.1(1)(c)
³ N.J. Stat. § 9:2-4.1(1)(d)

It might be a good idea to consult a domestic violence advocate or attorney before leaving the home where your spouse and children currently live. In some cases, leaving the home could harm your chances of getting custody. This is especially true if you leave, but your children stay with your abuser.

Anytime the judge makes a custody arrangement that both parents do not agree on, the court must specifically explain why “on the record.” Usually, the judge explains the reasons orally, in the courtroom. The denial of custody should be documented in an order but the reasons for the decision are rarely explained there. If you would like the judge’s explanation and you cannot be in court to hear it, you may order a transcript of the oral decision from the court for a cost.¹

¹ N.J. Stat. § 9:2-4(f)

As is explained in a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can only file for custody in the “home state” of the child (but please also take a look at Are there exceptions to the “home state” rule?). The “home state” is the state where your child has most recently lived with a parent or a person acting as a parent for the past six consecutive months. If your child is less than six months old, then your child’s home state is the state where s/he has lived since birth. Leaving the state for a short period of time, such as going on vacation, does not change your child’s home state.

If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least six months.¹ However, there are exceptions - please see Are there exceptions to the “home state” rule?

¹ See N.J. Stat. § 2A:34-65

You do not need a lawyer to file for custody. However, it may be best to get a lawyer, to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our NJ Finding a Lawyer. Additionally, in some cases, the judge may decide that it is appropriate to order the other party to pay your attorney fees.¹

If you are unable to get a lawyer, you can visit your local courthouse to file the paperwork that you will need to start a custody case.

You should know that court workers cannot tell you whether you should bring your case to court or what will happen if you do. Even if you plan on representing yourself, it may be helpful for you to have a lawyer review your forms before you file them.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

¹ N.J. Ct. R. 5:3-5(c)

Both parents have a shared responsibility to support their children. The parent who has a child under his/her care can request child support. You can find more information on our NJ Child Support section.

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, go to Who can seek custody?, I am the child’s relative (aunt/grandparent/cousin/etc). Can I get visitation of the child?, or talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our New Jersey Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order and get temporary custody as part of the restraining order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final custody order – by agreeing, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

The custody order may allow you to take your child out of the state, prohibit you from taking your child out of the state, or it may not address this issue at all. If it does not address the issue, you may need either the consent of the other parent or permission from the judge. The judge may require that you post a bond or other security conditioned upon the return of the child to the state.¹

If you would like to move to another state with your child, then you may have to ask the court’s permission (called a removal application). If you and the other parent share custody, and you want to move to another state with your child, then the court views this as if you had asked for a modification of custody. This means that the judge will look at this in the same way as if you had asked the court to take custody away from the other parent and give it to you. To get custody modified, you must convince the judge that there is “a substantial change in circumstances from the time the current custody arrangement was established,” and that a transfer of custody would be in the best interest of your child.¹

If you have physical custody of your child and the other parent has visitation, then you must prove to the court that:

• you have a “good faith” motive in moving – it’s not to make visitation harder for the other parent; and
• the move will not go against what is in the best interest of your child.

When a court considers this, it will look at how changes in visitation may affect the best interest of your child. You may also have to give a plan for proposed visitation.

Some factors that the court may look at to decide if you will be given permission to relocate are:

1. reasons for the move;
2. reasons for the other parent’s opposition to your move;
3. how the past history of the parties affects the reasons for and against the move;
4. whether the child will receive educational, health, and leisure opportunities that are as good as the ones s/he has now;
5. any special needs or talents of the child that require specialized help and whether that help is available in the new location;
6. whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
7. the likelihood that the custodial parent will continue to encourage the relationship of the child with the noncustodial parent;
8. the effect of the move on extended family relationships;
9. the child’s preference if s/he is mature enough to express it;
10. whether the child is entering senior year in high school;
11. whether the noncustodial parent has the ability to relocate; and
12. any other factor bearing on the child’s interest.

Not all of these factors will be relevant or given equal weight by the court.²

¹ N.J. Stat. § 9:2-2
² Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (Supr Ct 2001)

Both parents will have access to the child’s records, even if the child lives with only one parent. These records include information about the child’s medical, dental, educational care, insurance and child care. These records won’t include where either parent lives. If you don’t want the other parent to see these records, you may ask the court for a hearing to limit the other parent’s access. A judge will limit access if s/he decides that it would be in the best interest of your child, or if the other parent is using access to the records to harm you.¹

¹ N.J. Stat. §9:2-4.2