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Child Custody Modification and What is Typically Involved in a Change of Custody

Oct 31, 2014 @ 01:40 PM — by Michael Green

When seeking a modification of child custody there are a number of issues to consider.  If the parties cannot agree on a change of custody, a motion with the court must be filed and very often a best interests analysis must be obtained.  The court will often order a plenary hearing, a mini-trial where evidence is presented and testimony is taken of the parties, witnesses and experts.

The court may wish to rely on an expert that is a joint expert or each party may obtain their own expert to render a report and testify as to what is in the best interests of the children as regards custody by the parties.

Custody today is generally an issue between one parent being the parent of primary custody or the parents sharing physical custody.  Often it is helpful to look at two weeks and 14 overnights to determine how much parenting time each parent will have.  If both parties have 7 overnights per two weeks, that is essentially shared physical custody.  If one party has less than that, the other party is the parent of primary residence.  Being the parent of primary residence, may afford that parent certain rights or advantages regarding future relocation in the State of New Jersey or even relocation outside the State of New Jersey.  So it is important for both parties to understand what rights they will have or will give up if they agree to one party being the parent of primary residence.  Shared physical custody generally only makes sense when the parties both live close to where the children attend school.

After a motion for a change of custody is filed, whether that is through the divorce process or postjudgment after a divorce, an expert, generally a psychologist or psychiatrist with expertise in this area, will meet with the parties and the children involved.  Children have some say over the process upon reaching the age of 13 years old, but generally don't have a lot of say until they are 15 or 16 years old.  The children may be interviewed by the Court "in camera" as well, meaning in chambers with the Judge directly.  Courts try to keep the children out of the courtroom if possible so that the impact of the process is minimized.

After an expert report is generated, the parties and the court may review the report prior to the plenary hearing to determine if the parties may settle the matter upon having that information.  If the parties cannot settle the issue of custody at the time, then the parties must attend the plenary hearing. 

As you may understand from the above, the issue of custody if completely litigated is a costly and lengthy process, if at all possible, it is generally helpful for the parties to try and settle this matter before going to court, however, sometimes, that is just not possible.

If you have questions concerning a change of custody, please call Green & Associates for a free consultation at 732-390-0480 or 201-242-1119 today!

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