New Jersey’s child custody law, N.J.S.A. 9:2-4, is gender-neutral and child-centric. The state statute focuses on 14 factors that concern the best interests of the child and rejects gender-based custody determinations. Moreover, as old-timers retire from the bench, the bias that afforded mothers a “time-honored” preference, as one judge I know put it, has withered. In 2018, when CustodyXChange, creators of parenting-time planning software, conducted a first-of-its-kind study about parenting-time equality, it found that New Jersey mothers and fathers generally share parenting time equally.*
So, if New Jersey parents start with equal custody and parenting rights, why does one parent frequently end up with less time?
While each case is fact sensitive, three overarching fact patterns commonly dictate which parent gets a better shake in court. Parents who understand how judges apply the facts to resolve custody and parenting time issues, do better in court and enjoy fair and equal parenting time arrangements.
Be a Primary Parent
Primary parenting means in the trenches, get your hands dirty, parenting.
You love your children. Of course, you do. But in a custody battle, a judge must decide which parent is better suited to meet the needs of your children. Primary trumps love every time.
In most households, there is a division of labor: Dad takes out the garbage; mom loads the dishwasher. The parent who feeds and bathes the children is the primary parent. The parent who gets the children to school and takes them to the pediatrician, who reads to them and helps them do homework, is the primary parent.
If dad’s doing it and mom’s not, dad has an edge and will likely prevail in court.
It often turns out that mom is the one doing it while dad is working, watching the game, or doing whatever. This explains the preference mothers historically receive in custody battles. (The dad stereotype is so deeply ingrained in our culture that moms start custody battles one step ahead – even in the 21st century.)
Ask yourself these question –
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Do you know the names of your children’s teachers?
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Do you regularly attend their school conferences and events?
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When is the last time you attended your children’s soccer or dance lessons? (I’m talking about their lessons, not the big game or the spring recital.)
If your answers are “No,” you’re in trouble.
If you want an edge in custody litigation, be a primary parent. Do it for your children; they need you. Do it for yourself; you’ll earn the fulfillment that comes from being an involved parent. And, if you’re embroiled in a custody battle, you’ll be on solid ground when you ask a judge for custody or more parenting time.
Don’t Compete with Your Counterpart
I said, “be a primary parent,” not THE primary parent. Parenting is not a contest. It is about nurturing your children, meeting their needs for sustenance and enrichment, and teaching them right from wrong.
Parents who compete lose sight of the fact that children thrive when they have positive relationships with both parents. Mom’s warm touch, dad’s gentle humor are what matters. “I’m better than him!” “She’s not as good as me!” is something no child should hear.
Judges look favorably upon a parent who supports their child’s relationship with the other parent. Conversely, a parent who negatively influences the child’s relationship with the other parent, denigrates the other parent, or emits anger, is likely to lose a custody battle. In extreme cases, the offending parent may be accused of parental alienation. Many judges will consider a change of custody if alienation is suspected.
To gain an advantage in custody litigation, prove that you value your child’s relationship with the other parent. Encourage the connection every way you can. Invite the other parent to attend school events and activities. Inform him or her of the children’s doctors’ appointments. Offer to let the other parent take the lead if doing so will not diminish your role as an active and involved parent. (Do you really need to take Jenny to every ballet lesson?)
Promoting the other parent’s interest in your children may be a hard pill to swallow if you’ve been hurt or rejected. Maybe the other parent hasn’t made a support payment, and you’re struggling to make ends meet. Perhaps you’re just pissed off. Swallow your bad feelings and pride. Put your children’s needs before your own. Your child will benefit, and you’ll gain an edge in your fight for custody and parenting time.
Take the High Road and Exercise Restraint
Divorce is a complicated, emotional process. A custody case is divorce on steroids. You will be tempted to fire off angry emails and texts. Don’t do it. (Certain emails and text may constitute harassments and domestic violence.)
You may even be tempted to keep the kids when the other parent seeks to exercise court-ordered parenting time. Don’t do that either! (It’s a criminal offense, and no judge will look favorably on your action. See N.J.S.A. 2C:13-4.)
