Today, visitation is referred to as "parenting time" to acknowledge and respect the fact that divorced parents are indeed parenting their children during the time they spend with them, not merely "visiting" them. Both parents have their parenting time with the children and their schedule is referred to as a "parenting time plan."

Often, with the help of their attorneys and/or a mediator, parents can negotiate a parenting plan and have that plan memorialized in a Consent Order, which will finalize this issue in the court system. This will allow everyone to move forward with their lives and preserve their funds for their children's futures rather than waste money on unnecessary litigation. However, if parents are unable to agree upon a parenting time schedule, then their case often follows the same path as a full-blown custody case.

Gone are the days when courts automatically assumed that children belong primarily with their mother and should merely "visit" their father. Now that parenting roles have become gender neural in more and more households, so has the world of custody litigation. Custody and parenting time are now determined by the best interests of the child. Custody and parenting time cases are extremely fact-sensitive. The best interest of a child in one family may be completely different than the best interests of another child of the same age and gender in a different family.

N.J.S.A. 9:2-4 provides that the factors that shall be considered in determining the best interests of a child include, but are not limited to:

  • The parents' ability to agree, communicate and cooperate in matters relating to the child;
  • The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantial abuse;
  • The interaction and relationship of the child with parents and siblings;
  • The history of domestic violence, if any;
  • The safety of the child and the safety of either parent from physical abuse by the other parent;
  • The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  • The needs of the child;
  • The stability of the home environment offered;
  • The quality and continuity of the child's education;
  • The fitness of the parents (though a parent shall not be deemed unfit unless the parent's conduct has a substantial adverse effect on the child)
  • The geographical proximity of the parents' homes;
  • The extent and quality of the time spent with the child prior to or subsequent to the separation;
  • The parents' employment responsibilities; and
  • The age and number of the children.

If parents cannot agree upon a custody and parenting time plan, a court almost always requires that a best interest evaluation be conducted by a qualified expert. Sometimes the parents retain separate evaluators, sometimes they jointly retain one evaluator and sometimes the judge appoints an evaluator. At the conclusion of the evaluations and the issuance of the evaluator's report, the parties determine whether they are able to settle their matter or whether they will proceed with a trial.

For assistance with your child custody case or for help negotiating a parenting time that is in the best interest of your child, please call us at 973-993-9960 or click here to schedule a consultation.