Many times when people come into my office, they tell me that they want "sole custody." Everyone seems to have a different definition of what "sole custody" means to them. Sometimes that person wants the child to live with him or her, while other times the person does not want the other parent to have anything to do with the child.

Before anything else, it is important to understand custody in New Jersey. The courts tend to look at custody as a two part issue, one involving legal custody and the other involving residential custody.

Legal custody is almost always joint, that is, shared by both parties. Courts will rarely terminate parental rights, and it will only occur upon a showing of clear and convincing evidence that a parent has abandoned a child or is unfit. This reasoning comes from a United States Supreme Court case called Santosky v. Kramer, 455 U.S. 745 (1982). While some parents may argue that a parent is unfit, the burden of proof is high. Our own state Supreme Court determined that there must be proof of actual or imminent harm to the children (see New Jersey Division of Youth and Family Services v. A.W., 74 N.J. 591 (1977)). Our Supreme Court has also held that a parent's incarceration does not necessarily mean the parent is not entitled to visitation or that being around the parent would be harmful to the child (see In re L.A.S., 134 N.J. 127 (1993) and Fusco v. Fusco, 186 N.J. Super 312 (App. Div. 1982)). What to take away from all of this is easily summarized by the case of Barron v. Barron, 184 N.J. Super 297 (Ch. Div. 1982): "Absent serious wrongdoing or unfitness, the right of visitation is strong and compelling." To put it another way, there's a big difference between a parent that doesn't show up for visitation and a parent that has been convicted of molesting the child.

The other type of custody regards residential custody. Sometimes, especially when the child is young, residential custody is shared. More often than not, one parent is deemed the "Parent of Primary Residence" (PPR) and one parent is deemed the "Parent of Alternate Residence" (PAR). The PPR is the person the child lives with more often than not, usually a minimum of four (4) overnights per week. Judges look at overnights rather than hours. In fact, the New Jersey Child Support Guidelines count the number of overnights per parent as part of the overall determination for the amount of child support.

For that reason, the PAR may petition the Court for more parenting time. Usually, this requires a showing of a significant change of circumstances in order to alter the preexisting arrangements, but Judges like to encourage parents to spend more time with children. Even if one of those reasons is a reduction of child support (via increased overnights), if a parent is genuine about spending real "quality time" with his or her children, the Courts are usually inclined to allow that, within reason.

After all, it is the public policy of the Courts to support parenting time for both parents, whether they are divorced or unmarried but no longer together. "Children should have equal access to both parents, [and] the severance of the ties to either parent is contrary to the child's best interest. The child should be able to recognize both parents as sources of security and love and should wish to continue both relationships" (McCown v. McCown, 277 N.J. Super. 213, 218 (App. Div. 1994), citing Beck v. Beck, 86 N.J. 480, 486 (1981)).