Custody: Changing the Custody Arrangement

More often than not, divorce decrees and settlement agreements are dispositive of physical and legal custody of the children born of the marriage. In most situations, the parties have joint legal custody while one party maintains sole physical custody. The non-custodial parent is awarded parenting-time.

In some situations, the custody agreement which was awarded or agreed to is no longer in the child’s best interests. In order to change the custody arrangement in effect, a party must file a motion for modification of custody.

An award of custody is always subject to modification at any time upon a showing of substantial change in circumstance. The primary considerations of the court are the best interests of the child. The court looks to the bona fides of the party seeking modification upon changed circumstances, and will not view a custody agreement entered into by the parties, even in open court, as binding. Sheehan v. Sheehan, 51 N.J.Super. 276 (App. Div. 1958).

N.J.S.A. 9:2-4(c) provides that in determining custody, the court must consider the following factors:

[T]he 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 substantiated abuse; the interaction and relationship of the child with its 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; 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.

N.J.S.A. 9:2-4(c) These factors offer guidance to the courts in determining the ultimate issue underlying custody — the best interest of the child. Sacharow v. Sacharow, 177 N.J. 62, 83 (2003).

[A] best-interests test is designed to create not a new member of the intelligentsia but rather a well-integrated person who might reasonably be expected to be happy with life.” In re Baby M., 109 N.J. 396, 460 (1988). ” ‘Best interests’ does not contain within it any idealized lifestyle; the question boils down to a judgment, consisting of many factors, about the likely future happiness of a human being.Id.

Since the right of parents to the custody of their minor children is both a natural and legal right, the law should not disturb the parent/child relationship except for the strongest reasons and only upon a clear showing of a parent’s gross misconduct or unfitness or of other extraordinary circumstances affecting the welfare of the child. In the Matter of D.T., 200 N.J.Super. 171, 176 (App. Div. 1985). See 59 Am.Jur. 2nd, Parent and Child §25 at 107-108 (1971).