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July 29, 2019

Child Custody: A divorce’s most important decision

Family Law Divorce

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If a marriage has resulted in children, the process of a divorce becomes significantly more complicated. In addition to the normal factors that must be considered in the dissolution of any marriage, decisions about the custody and care of dependents must be made delicately with the help of an experienced family law attorney. In Pennsylvania and New Jersey, both parties are encouraged to make decisions based upon the best interest of the children. A clear understanding of the law, the possible outcomes that can occur and the factors that a court would consider if required to make a decision can keep those discussions on track.

There are two primary issues to address when dealing with custody, legal and physical custody. Legal custody determines who has the responsibility making decisions regarding the health, religion, education and welfare of the chid(ren). Physical custody is the allocation of time between each parent and the child/children). In most cases, custody issues are resolved with the parents sharing joint legal custody of the children. The physical custody plan is generally determined based upon fact sensitive analysis of the family. Stephanie Zane, Esquire, a partner at Archer & Greiner, PC, notes that in both Pennsylvania and New Jersey, absent circumstances directing otherwise parents are generally encouraged to craft a parenting time schedule that will maximize each parents’ available time with the child/children while keeping in mind realistic availability and the needs of the child/children.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides a consistent framework for settling child custody issues across all states, and generally assigns responsibility for child custody decisions to a child’s “home state,” regardless of where the parents reside.

Pennsylvania determines the best interests of a child’s custody by considering all relevant factors, especially those related to the child’s safety. It is always preferable for parents to propose a parenting agreement to the court, which should be developed in consultation with counsel. Pennsylvania generally makes an effort to allow some type of visitation for both parents; except for cases of disability or other extenuating circumstances, agreements are only relevant to children under 18.

While New Jersey also strongly encourages parents to develop their own visitation schedules and encourages schedules which allow time with both parents, the state also in certain circumstances takes the wishes of the child into consideration. There is no cookie-cutter parenting plan to be applied to every case, says Drew Burach, Esquire also a Partner at Archer. In fact, says Burach, establishing a realistic schedule that will allow for the family to be successful post-divorce is often one of the most important aspects of a case. Entering into an unrealistic plan (regardless of good intentions) will lead to avoidable litigation post-judgment, says Zane. It is important to have a knowledgeable family law attorney to help navigate the difficult issue.

Child support is a recurring payment from one parent to the other for the benefit of the child/children based upon a variety of factors including the custody arrangement. In Pennsylvania, child support terminates when the child turns 18. In New Jersey, child support continues until the child’s emancipation; i.e. there is no automatic cut-off. Child support for a child who is not in college (or who is in college and commuting from home) is typically established based upon the New Jersey Child Support Guidelines. However for those with children living away at college, according to Burach, consistent with Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012), a fact sensitive analysis of the specific details of each case should be undertaken to determine each parent’s (and the child’s) contribution to the on-going expenses of that unemancipated child.

It is essential that any agreement entered at the time of a divorce specifically address the above issues in detail to ensure that the basis of the Agreement is set forth. Post-Divorce changes in circumstance can result in necessary changes to the Agreement either through a subsequent agreement of the parties (which should be in memorialized in writing) or through litigation. These issues, however, are complex, and a capable, trustworthy family law attorney can help secure the best possible outcome for you.