Child Custody

A judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances, and it is the party seeking a modification who bears the burden of proof. Sheehan v. Sheehan, N.J. Super. 276, 287 (App. Div. 1958). 

A judge faced with a very difficult decision in custody disputes has several factors outlined in N.J.S.A. 9:2-4(c) as guideposts in making such a determination. A few of the most important factors include the following:

  • the parent’s ability to agree and communicate regarding matters relating to the child;
  • the parents’ willingness to accept custody;
  • the parent-child relationship and interactions;
  • the stability of the home environment offered; and
  • the needs of the child.

The paramount consideration in determining child custody is to foster the best interests of the child. Beck v. Beck, 86 N.J. 480 (1981). This standard has been described as one that protects the safety, happiness and physical, mental and moral welfare of the child. Fantony v. Fantony, 21 N.J. 525 (1956). The statute provides for equal access to the child/children by both parents. N.J.S.A. 9:2-4.

Courts in New Jersey have broad discretion for custody determinations in divorce proceedings. The paramount consideration in any child custody determination is to foster the best interests of the children involved. Thus, the standard accounts for the child’s “safety, happiness, physical, mental and moral welfare.” Beck v. Beck, 86 N.J. 480, 497 (1981). 

Types of Custody

There are various types of custody in New Jersey as set forth in N.J.S.A. 9:2-4.

  • Legal custody – which parent will make the major decisions affecting the children, such as health, welfare, religious training, education;
  • Joint legal custody – both parents will be involved in making all major decisions; or
  • Sole legal custody – one parent will make all major decisions;
  • Physical custody – where the children physically reside;
  • Shared/joint physical custody – the children reside with both parents equally or close to equally; or
  • Parents of primary and alternate residence – the children reside primarily with one parent and have parenting time with the other parent; or
  • Sole physical custody – the children reside with only one parent.

There is no presumption in favor of any of the types of custody. Beck v. Beck, 86 N.J. 480 (1981).


In making an award of custody, a court considers factors set forth in N.J.S.A. 9:2-4, the most important of which are:

  • The needs of the child;
  • The fitness of the parents;
  • The stability of the home environment offered;
  • The parents’ ability to agree, communicate and cooperate in matters relating to the child;
  • The history of domestic violence, if any; and
  • The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.

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When parties divorce and one parent wishes to relocate with the children to a different state over the other parent’s objection, a number of significant legal questions can arise. For example, while the relocating parent may have legitimate reasons for relocating as life circumstances change, the relocation cannot occur at the expense of the child’s relationship with the other parent.

In Bisbing v. Bisbing, the Supreme Court of New Jersey recently overturned years of precedent regarding the necessary justification required to permanently relocate children to a different state than where the former marital home was established. The seminal case also abolished the primary custodial parents’ presumptive right to relocate with the children after a divorce.

The Old Standard: Baures v. Lewis

Shared Custody: When the parties share physical custody, one parents’ attempted relocation with the children “effectively constitutes a motion for a change of custody.” Thus, the relocating parent under this old standard must have initially proved that a change in circumstances warranted the relocation, and ultimately that the best interests of the children would best be served by transferring residential custody to the relocating parent.

Single Primary Custodial Parent: When one party maintains primary or sole residential custody of the children, that parent has the burden of proving (1) a good faith motive for the relocation; and (2) that the move was not inimical to the interests of the children. In determining whether the move was not in the children’s best interests, courts used a 12-factor analysis. Some of the most important factors included:

  • The reasons given by both parties;
  • Whether the child will receive at least equivalent education to the jurisdiction of the former marital home;
  • The likelihood that the custodial parent will continue to support a healthy relationship between the children and other parent;
  • The effect of the move on relationships with extended family; and
  • Whether a visitation and communication schedule can be established to maintain a continuous relationship with the non-custodial parent. 

The New Standard: Bisbing v. Bisbing

In Bisbing v. Bisbing, the Supreme Court departed from the two-step analysis set forth in Baures and replaced the test with a “best interests analysis.” This new test under Bisbing applies irrespective of whether both parents share physical custody or one parent is the primary custodial parent. 

Under this new standard, it is no longer required that a court consider any bad faith on the part of the relocating parent; rather, the only determination is whether the relocation is in the children’s best interests under N.J.S.A. 9:2-4(c). Thus, the same factors listed above considering the best interests of the child are used in making a determination as to whether the justification for relocation is sufficient.

Reach Out Today

For many parents, their children are the most important part of their lives. It is therefore imperative to seek expert legal counsel in the area of child custody and relocation. If you have a child custody case, contact the attorneys at Sarno da Costa D’Aniello Maceri LLC to learn how we can help you navigate the difficult and emotional process of child custody and relocation issues. If you need more general information regarding child custody or other aspects of family law, please view our blog and articles on our website.