The types of custody are often misunderstood. When a client calls our office, we typically hear something about full custody. Thanks to Google and popular TV shows, custody and parenting time phrases are generally used inaccurately. In this brief blog, I hope we can give you some background on custody terms and what they mean.
In New Jersey, there are two types of custody: legal and physical/residential custody. When you discuss custody, you must consider these two types of custody separately. “Legal custody” deals with decision making on major issues involving your children. Essentially, legal custody means that you have the ability to make all key decisions regarding your child or children’s health, education, and welfare. There is something of a debate on whether something is a “major” decision, but I find that it is fairly self-evident that something is major. For example, elective surgery, public versus private school and religious education are all considered “major” decision. In the majority of cases, parents share joint legal custody, meaning they have to make major decisions together. It is very rare to not have joint legal custody.
The other type of custody is physical or residential custody. In simple terms, this is where the children stay the majority of a day. The parent who has more than fifty percent of days in which they have the majority of the time with the children is known as the parent of primary residence. In other words, we start with who the parent is with overnight, meaning more than 50% of the day. Then, it is a math exercise to determine how many of these overnights the child or children are with each parent. If one parent has all of the overnight with the children, which is rare, they are known as the sole residential custodian. If the parents have exactly equal time with the children, which is becoming progressively more comment, they have joint residential custody. In the majority of cases, the parents have an arrangement where one is the parent of primary residence and one is the parent of alternate residence. This means that one parent has 183 or more overnights (50% plus one overnight) with the child or children.
Compared to legal custody, the parent who has residential custody on any given day makes all day-to-day decisions regarding the children. This means that the parent who has residential custody decides what the children eat, when they go to bed, what clothes they wear, and what their daily routine is when they are with that parent.
Once we have determined the legal custodial arrangement, we must decide what the residential custodial arrangement is going to be. The non-custodial parent, also known as the parent of alternate residence, will receive parenting time with the children. This can range from alternative weekends to equal time.
Decisions regarding custody are very important and can have grave consequences for your child or children. Understanding your options is the first steps to determining what is in your children’s best interest, which should be your only consideration If you want to learn more, contact our office at (732) 479-4711.