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The days ahead may be a challenge. But we will continue to work to take care of our client’s cases and to take on new matters and clients. We will simply manage your case in less traditional, more technology-driven ways, that are safer for your health and ours.

Please stay healthy and contact us if you have any questions or concerns regarding your case or a new matter for us to consider.

Andrew Bestafka, Monmouth County Divorce Lawyer

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Divorce, Custody & Family Law

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What Determines Child Custody In New Jersey?

Divorce is unpleasant enough for all parties, but it can be twice as hard when there are children involved. Child custody discussions are never enjoyable, but there are ways to make the process flow as smoothly as possible.

Custody and Support

In New Jersey, child custody is handled separately from child support. Support is based upon many factors, including the earning ability of the parents, the number of children, and the standard of living.

When custody, or visitation, is determined under New Jersey law, and there are fourteen enumerated factors a judge must consider. These factors include:

  • Each parent’s ability and willingness to communicate with the other and to encourage a healthy relationship between the child and the other parent
  • Each parent’s ability to provide a safe, stable home environment
  • The child’s relationship to each parent and to their siblings
  • Each parent’s geographic location relative to the other and to the child’s school and friends
  • The child’s own preference
  • Any history of domestic abuse

In New Jersey, as in all states, the judge must consider the best interests of the child first and foremost. The old “maternal preference” no longer applies in custody cases, except in instances of infants.

Other Considerations

The parent who has primary physical custody of the child is the “custodial parent.” This refers to the parent with whom the child spends the most time, even if only by one day. The other parent is the “non-custodial parent.” These terms principally have to do with the child’s address.

When a parent is granted “legal custody,” that means they are responsible for making decisions involving the child’s medical, educational, religious, and other activities. Unless there is a compelling reason not to do so, courts award parents joint legal custody. This means that both parents have an equal right to make decisions about their child and should consult one another before making important decisions.

In all but the most extreme cases, courts award physical custody to both parents equally. The court will try to grant custody with the minimum possible disruption to the child’s routine. Typically, parents find it expedient to trade weeks, which lets the child maintain their school and social schedule without too much alteration.

In unusual situations, such as when a parent lives a long way from the other, then the parents and child can make alternative arrangements. For instance, the child may spend the school year with one parent and summers and holidays with the other.

When Parents Agree

Ideally, parents understand that the custody arrangement must be whatever is best for the child. It may not be the best option to have two separate bedrooms and two separate homes every other week. If both parents are agreeable to different arrangements, they may create any setup they like.

The court has to step in only when parents cannot or will not agree.

When the Child Disagrees

A child’s opinion is considered by the court under certain conditions. The judge must consider the child’s mental age and emotional status. A child under eight is presumed to be too young to state a preference, although family court judges will often agree to speak to the child privately to ensure they understand what is happening.

Between the ages of 9 and 17, a child may make a preference known. Although the judge is not bound to follow it, there should be consideration given. A child who says they want to stay at their mom’s during the week because the downstairs neighbors at their dad’s place are so loud that studying is impossible is making a good point.

When a child suddenly refuses to abide by a custody agreement, it could be a sign that something is wrong. There may be problems with one of the parents, such as abuse or neglect, or one parent may be attempting to alienate the child’s affections for the other parent. Or it could have nothing to do with either parent. Parents and judges should avoid jumping to conclusions in these situations.

Final Determinations

Parents can amend their custody agreements as their lives change. As children get older, their needs for parental support change, their interests and friends change, so the time they spend with their parents will be different.

When this happens, parents should consult their attorneys about having an amendment added to the original agreement. This protects everyone’s interests and prevents anyone from claiming later that they never agreed to alterations of visitation, vacation plans, or other major changes.

If you’re contemplating divorce, or if you’ve already divorced but are having difficulties with the custody arrangements previously made, call Law Office of Andrew A. Bestafka, Esq. at (732) 898-2378 today. We are experienced in all things related to child custody, and we will advise you about your legal options. Don’t suffer through these difficult times alone. Our child custody attorneys stand ready to take on your issues and help you do what’s best for your kids.



Does My Teenaged Child Have the Right to Choose Where He/She Wants to Live?

A teenaged child’s preference to change custody is but one factor that a Court must consider when transferring custody to a non-custodial parent.

On January 17, 2012, the Appellate Division, in Atherholt v. Hunter, reiterated a well settled principle that New Jersey Courts are required to hold plenary hearings before changing custody and must analyze the factors set forth in N.J.S.A. 9:2-4, even when an older child expresses a desire to live with the other parent.

The case came to the Appellate Division when the mother, Mary Atherholt, appealed a Family Part Order that granted her ex-husband, Michael Hunter, residential custody of their fourteen (14) year old son M.H. after an interview with the child, but without a plenary hearing. The Family Part judge found several factors that justified granting the Father custody, including but not limited to: M.H.’s preference to live with his father, the higher quality of educational facilities accessible from the father’s residence, and the inherent value of a father-son relationship during adolescence, which M.H. was just beginning to enter at the time. This marked the first success in a string of failed efforts by the Father to attain residential custody of his son. Such a motion was denied without prejudice in a February 2010 Order, with the parties being ordered to engage in mediation. Upon failure of the mediation the Father filed another motion, which was denied in September 2010 by a different judge. At that time a CNA report recommended that the Father enjoy increased parenting time with M.H., but with the Mother retaining primary custody.

After two camera interviews, the judge concluded that a change of circumstances had taken place, based in large part on the child’s preferences, and granted the Father residential custody, provoking an appeal. The Family Part Order was reversed on the basis that the judge did not hold a plenary hearing when making this decision, to determine the best interests of the child, and that he did not consider each of the factors outlined in N.J.S.A. 9:2-4 (“safety, happiness, physical, mental and moral welfare.”) that would culminate to provide a justification for a change in custody.

The appellate division released another opinion on January 23, 2012, again reiterating the necessity of a plenary hearing. In M.I. v. B.I., the trial court conducted an in camera interview of the parties’ fifteen (15) year old daughter, who the court found to be “very sophisticated” and who expressed a desire to live with her father, and indicated her concerns for her mother’s parenting style. The parties have two children. The trial court denied the father’s application for a transfer of custody, without holding a plenary hearing. The trial court expressed concerns about splittingup the two children. The Appellate Division held, that the “views of Amy, then age fifteen, were entitled to significant, albeit not controlling, weight.” The Appellate Division was satisfied that the father had made a prima facie case of changed circumstances, “specifically the preferences of a“very sophisticated” fifteen-year-old girl who expressed a preference for living with one parent and concerns about the parenting style of her then parent of primary residence.” Since the Appellate Division did not find the record to contain sufficient factual support for the judge’s denial of the father’s application, the panel remanded the matter for further consideration, and a plenary if the issues remain contested.

If you have questions about child custody or your rights as a parent, contact the Monmouth County child custody lawyers at the Law Office of Andrew A. Bestafka, Esq., today by calling (732) 898-2378.



Katie Holmes files for divorce from Tom Cruise

Katie Holmes filed for divorce from Tom Cruise on Thursday, surprising many people, including Tom Cruise, according to sources close to the couple. Holmes filed in New York and is also seeking full legal custody of their 6-year-old daughter, Suri.

When TMZ broke the story, it was reported that the Church of Scientology was a big reason that Holmes filed for divorce. She allegedly did not follow the religion as closely as Cruise does.

It is also rumored that she is seeking full custody of their daughter because of the church’s view on medical decisions. In order to receive full custody, Holmes will have to have ‘extensive’ proof that Cruise is not a fit parent.

Most courts want both parents to have partial custody of their children if they are considered fit parents, as that is the best interest of the child. However, officials have stated that courts in New York are more likely to give full custody than California courts, which may be why Holmes chose to file in Manhattan.



Dennis Rodman sentenced for failure to pay child support

Former NBA player, Dennis Rodman has now been sentenced after being found guilty on four counts  of contempt for failure to pay child support. He has been sentenced to 104 hours of community service and has also been placed on three years of unofficial probation in order to make sure that he continues to pay child and spousal support that he owes.

Rodman is accused of owing child and spousal support to his ex-wife in amounts that exceed over $800,000 and legal issues on the matter began in 2004.

The charges come from 2009 and 2010 when Rodman was expected to pay nearly $50,000 a month in support. This payment has  now been reduced to $4,500 a month.

Divorce, child support and spousal support can be very complicated issues, to learn more about this and how child custody is determined, contact the Monmouth County child support lawyers of the Law Office of Andrew A.  Bestafka, Esq by calling 732-898-2378.



Usher and ex-wife face child custody issue

Singer Usher Raymond and ex-wife, Tameka Raymond, are currently in the middle of a child custody battle that a judge has recently sent to mediation.

The couple entered a Fulton County Courtroom this morning where a judge told them to take time today and try to hash out a private mediation agreement.

They were asked to work things out quickly and reconvene before the judge later this afternoon. They are caught up in a dispute about how custodial time will be divided and what child support arrangements are to be made.

The couple currently shares custody, but Tameka is seeking full custody because she claims that Usher uses drugs. He denies this and has requested more time with his children.

Child custody and support are very delicate topics because each parent should want what is best for their child. If you are going through a divorce and need the help of a legal professional to resolve a child custody dispute, the Monmouth County child custody lawyers of the Law Office of Andrew A. Bestafka, Esq., are here to help. Contact us by calling 732-898-2378 today.