Thursday, May 24, 2012

Do you have shared custody?

You may think that you have shared custody of your children if you see them as often, or more often, than the other parent, but in New Jersey that does not give you shared custody in the eyes of the court. In New Jersey, the court will look at each parent’s responsibility for custodial functions to determine whether there is true shared custody.

In Morgan v. Morgan, the Property Settlement Agreement (“PSA”) gave the parents shared legal custody of the minor children and Wife was designated as the parent of primary residence. Husband later filed an application seeking a redetermination of custody based on a change in circumstances citing Wife’s impending move to Massachusetts with their children.

For removal cases, a parent’s custody status is crucial. If the parents have shared custody, the removal motion is reviewed as an application to change custodial status using the best interests of the child standard. If the parents do not have shared custody, the removal application is determined under the Baures standard and the parent who wants to relocate has to make a prima facie showing of (1) good faith for the move and (2) that the children will not suffer. “Prima facie” is a legal term that means essentially that the party can demonstrate the requirements at first glance. It does not mean they have to prove it immediately or that the other party will not be able to disprove it. 

The relocating party must also provide the court with a parenting time proposal for the non-moving parent. The Baures decision guides courts to allow parents to relocate with their children if the two above elements are satisfied, regardless of whether or not it changes the other parent’s parenting time.

To determine whether a best interests standard or the Baures standard should be used, the court must first determine whether the parents have shared custody. To determine whether or not the parents share custody, the court will look at each party’s responsibilities and duties to the children. These responsibilities and duties can include preparing meals, providing medical care, disciplining, etc. Simply seeing children as much as the other parent does not necessarily mean there is shared custody under New Jersey law which would force the other parent to satisfy the Baures standard in order to relocate with the children.

If you or the other parent are thinking of relocating with your children, you should contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.


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