Note: This article is intended for informational purposes only and does not constitute legal advice. Laws and procedures may change over time. Anyone facing child custody matters should consult with a qualified family law attorney for guidance specific to their situation.

Introduction

When your child expresses a desire to live with you, navigating the legal process to obtain custody can be both emotionally challenging and procedurally complex. In New Jersey, particularly in Essex and Union Counties, there are specific procedures and considerations that apply to custody cases. This article provides guidance on the process of seeking custody in these counties when your child has expressed a preference to live with you.

Essex County, which includes Newark, and Union County, which includes Elizabeth, have their own family court divisions with specific procedures while operating under the same state family law framework. Understanding both the general state laws and the county-specific procedures can help you navigate this challenging process more effectively.

Understanding Child Custody in New Jersey

Before diving into the county-specific processes, it’s important to understand the basic framework of child custody in New Jersey:

Types of Custody

New Jersey recognizes two dimensions of custody:

Legal Custody: The authority to make major decisions regarding your child’s welfare, including education, healthcare, and religious upbringing.

• Joint Legal Custody: Both parents share decision-making responsibilities (most common in NJ)
• Sole Legal Custody: One parent has exclusive decision-making authority (less common and typically awarded only in cases involving abuse, neglect, or parental unfitness)

Physical Custody: Determines where the child primarily resides and the schedule of parenting time.

• Joint Physical Custody: The child spends substantial time with both parents
• Primary Physical Custody: The child lives primarily with one parent while the other has parenting time (visitation)

Best Interests Standard

New Jersey courts determine custody based on the “best interests of the child” standard. Under N.J.S.A. 9:2-4, courts consider multiple factors, including:

1. The parents’ ability to agree, communicate, and cooperate regarding the child
2. The parents’ willingness to accept custody and any history of unwillingness
3. Any history of domestic violence
4. The child’s needs and the stability of each home environment
5. The geographical proximity of the parents’ homes
6. The parents’ employment responsibilities
7. The age and number of children
8. The quality and continuity of the child’s education
9. The fitness of each parent
10. The extent and quality of time spent with the child before and after separation
11. The parents’ ability to cooperate in child care
12. The child’s preference, if the court determines the child is of sufficient age and capacity to reason

The Role of a Child’s Preference in Custody Decisions

When your child expresses a desire to live with you, it becomes one factor among many that the court will consider. The weight given to this preference depends on:

Age and Maturity

New Jersey does not specify a minimum age at which a child’s preference must be considered. Instead, judges evaluate each child’s maturity individually. Generally:

• Teenagers’ preferences typically receive more consideration than those of younger children
• Children 12 and older are more likely to have their preferences given significant weight
• Even for older children, preference alone is rarely the determining factor

Reasoning Behind the Preference

Courts distinguish between preferences based on:

• Substantive reasons (educational opportunities, proximity to support systems, etc.)
• Superficial reasons (fewer rules, more lenient discipline, etc.)

External Influence

The court will consider whether the child’s preference is genuine or potentially influenced by:

• Parental coaching or manipulation
• Recent conflicts or discipline issues
• Gifts, promises, or other incentives

Essex County Custody Procedures

Court Information and Resources

Essex County Family Division
Essex County Veterans Courthouse
50 West Market Street
Newark, NJ 07102
Phone: (973) 776-9300

Family Division Manager: Jacquelyn Aquino
Hours of Operation: Monday-Friday, 8:30 AM – 4:30 PM

Specific Requirements and Procedures

Essex County has several unique characteristics in its family court system:

1. Case Management: Essex County utilizes a case management system where each case is assigned to a specific team of judges and staff. Knowing your team assignment is helpful for all communications.
2. Parent Education Program: Essex County requires divorcing or separating parents to attend the “Parents’ Education Program” early in the process. This program helps parents understand the effects of separation on children and develop effective co-parenting strategies.
3. Mediation Services: Essex County has a robust mediation program specifically for custody and parenting time disputes. Mediation is typically required before a case proceeds to a hearing.
4. Custody Neutral Assessment: In more complex cases, Essex County may order a Custody Neutral Assessment (CNA) conducted by court staff to provide recommendations on custody arrangements.
5. Intensive Settlement Conferences: Before trial, Essex County requires participation in an Intensive Settlement Conference with a court-appointed mediator.
6. Children’s Interview Process: Essex County judges often interview children in chambers with a court-appointed guardian ad litem or lawyer present to represent the child’s interests.

Filing for Custody in Essex County

To initiate a custody case in Essex County:

1. Prepare and file the appropriate forms:
   • Complaint for Custody (if no prior order exists)
   • Motion to Modify Custody (if modifying an existing order)
   • Certification/Affidavit detailing reasons for seeking custody
   • Proposed Parenting Plan
   • Financial disclosure forms if child support is also at issue
2. Pay filing fees: Current filing fees are approximately $175 for post-judgment motions. Fee waivers are available for qualifying individuals.
3. Service of Process: The other parent must be properly served with the filed documents at least 24 days before the scheduled court date.
4. Attend mandatory programs: Complete the Parents’ Education Program and any other court-ordered assessments.
5. Prepare for initial hearing: After filing, you’ll receive a date for an initial hearing or case management conference.

Essex County Custody Evaluation Process

Essex County has a multi-tiered approach to custody evaluations:

1. Custody/Parenting Time Mediation: Free service provided by the court, usually the first step.
2. Custody Neutral Assessment (CNA): If mediation doesn’t resolve the issues, a CNA may be ordered. This is a brief evaluation conducted by court staff to provide recommendations.
3. Best Interests Evaluation: In more complex cases, the court may order a comprehensive custody evaluation by a psychologist or social worker. These evaluations typically include:
   • Parent interviews
   • Child interviews
   • Home visits
   • Observations of parent-child interactions
   • Collateral contacts with schools, doctors, etc.
   • Psychological testing (in some cases)

Note that Essex County has a designated list of approved evaluators for Best Interests Evaluations. These evaluations typically cost between $3,000-$8,000 depending on complexity.

Union County Custody Procedures

Court Information and Resources

Union County Family Division
Union County Courthouse
2 Broad Street
Elizabeth, NJ 07207
Phone: (908) 659-4600

Family Division Manager: Hailey Charney
Hours of Operation: Monday-Friday, 8:30 AM – 4:30 PM

Specific Requirements and Procedures

Union County’s family court has its own distinctive features:

1. Early Settlement Program (ESP): Union County has a robust Early Settlement Program aimed at resolving custody disputes without protracted litigation.
2. Co-Parenting Education Program: Similar to Essex County, Union County requires parents to complete a co-parenting education program, though the specific program differs.
3. Custody/Parenting Time Mediation: Mandatory mediation through the court’s Complementary Dispute Resolution (CDR) program.
4. Family Case Management: Union County assigns each case to a specific Family Case Management team.
5. Court Appointed Special Advocates (CASA): In more complex cases, Union County may appoint a CASA volunteer to represent the child’s interests.

Filing for Custody in Union County

To initiate a custody case in Union County:

1. Prepare and file the appropriate forms:
   • Complaint for Custody or Motion to Modify Custody
   • Certification/Affidavit detailing reasons for seeking custody
   • Proposed Parenting Plan
   • Financial disclosure forms if child support is also at issue
2. Pay filing fees: Current filing fees are approximately $175 for post-judgment motions. Fee waivers are available for qualifying individuals.
3. Attend required programs: Complete the Co-Parenting Education Program and any other court-ordered assessments.
4. Prepare for initial hearing: After filing, you’ll receive a date for an initial hearing or case management conference.

Union County Custody Evaluation Process

Union County employs a multi-phase evaluation process:

1. Custody/Parenting Time Mediation: Required first step for most cases.
2. Court-Appointed Expert Evaluations: If mediation doesn’t resolve the issues, the court may order an expert evaluation. Union County maintains a roster of approved mental health professionals for these evaluations.
3. Child Interview Process: In Union County, judges often interview children in chambers with a law guardian present. The county has developed specific protocols for these interviews to minimize stress on the child.

Presenting Your Child’s Preference Effectively

When your child has expressed a preference to live with you, presenting this information to the court requires careful consideration:

Documentation Strategies

1. Professional Documentation: Consider having your child speak with a therapist or counselor who can document their feelings and preferences in a professional context.
2. School Records: Gather information from teachers, guidance counselors, or school psychologists who may have insight into your child’s preferences and wellbeing.
3. Avoid Direct Statements: Rather than submitting written statements from your child, which could put them in an uncomfortable position, document instances when they’ve expressed their preference naturally.
4. Guardian Ad Litem: Both Essex and Union Counties may appoint a guardian ad litem (GAL) to represent your child’s interests. The GAL can convey your child’s preferences to the court.

Proper Framing of the Child’s Preference

When presenting your child’s preference to the court:

1. Focus on Reasoning: Emphasize the mature reasoning behind your child’s preference rather than just the preference itself.
2. Connect to Best Interests Factors: Demonstrate how your child’s preference aligns with other best interests factors.
3. Avoid Alienation Concerns: Present the preference in a way that shows you still support the child’s relationship with the other parent.
4. Consider Timing: If your child’s preference is recent, be prepared to explain any changes in circumstances that prompted it.

Strengthening Your Case in Essex and Union Counties

Evidence Collection Strategies

1. Document Your Involvement: Keep detailed records of your participation in your child’s education, healthcare, extracurricular activities, and daily care.
2. Stable Home Environment: Provide evidence of a stable home environment with appropriate space for your child, proximity to their school, and a supportive community.
3. Flexibility and Co-Parenting: Document your willingness to work with the other parent and facilitate their relationship with the child.
4. Support Network: Demonstrate your support system, including family members, friends, and community resources that can assist with child-rearing.

Working with Professionals

Both Essex and Union Counties have resources to help with your case:

1. Family Law Attorneys: Both counties have bar associations that can provide referrals to experienced family law attorneys:
   • Essex County Bar Association: (973) 622-6207
   • Union County Bar Association: (908) 354-5984
2. Parenting Coordinators: For high-conflict cases, both counties may appoint parenting coordinators to help resolve ongoing disputes.
3. Family Therapy Resources:
   • Essex County: Family Connections (973) 675-3817
   • Union County: Family and Children’s Services (908) 352-7474

Special Considerations for Essex and Union Counties

Cultural Diversity

Both Essex and Union Counties are culturally diverse, with significant immigrant populations. The courts in these counties are equipped to handle cases involving families from various cultural backgrounds:

• Language Services: Both counties provide interpreter services for court proceedings.
• Cultural Sensitivity: Judges in both counties generally recognize the importance of cultural factors in family dynamics.

High-Volume Courts

Both Essex and Union Counties have high-volume family court dockets, which can impact your case:

• Case Management: Your case may be one of many assigned to a particular judge, potentially affecting scheduling and the time available for hearings.
• Preparation: Being thoroughly prepared for each court appearance is essential, as judges often have limited time to review materials during hearings.

Urban vs. Suburban Considerations

Essex County (particularly Newark) and parts of Union County deal with urban challenges that may affect custody determinations:

• School Districts: Quality of schools varies significantly within both counties.
• Transportation: Access to reliable transportation may be a factor if parents live far apart.
• Safety Concerns: Some neighborhoods may present safety challenges that courts will consider.

Navigating the Process: Timeline and Expectations

Typical Timeline for Essex and Union Counties

1. Initial Filing to First Hearing: 4-6 weeks
2. Mandatory Mediation: Typically scheduled within 30-60 days of filing
3. Custody Evaluation (if ordered): 2-4 months
4. Trial Preparation: 1-2 months
5. Trial: 1 day to several weeks depending on complexity
6. Decision: Immediate to several weeks after trial

Managing Expectations

1. Incremental Progress: Courts often make incremental changes rather than dramatic shifts in custody arrangements.
2. Temporary Orders: Both counties commonly issue temporary orders while the case proceeds, which may include gradually increasing parenting time.
3. Focus on Cooperation: Demonstrating your ability to cooperate with the other parent consistently improves outcomes in both counties.
4. Address Concerns Proactively: If there are legitimate concerns about the current arrangement, address them directly with evidence rather than relying solely on your child’s preference.

Conclusion

Seeking custody of your child in Essex or Union County when they’ve expressed a desire to live with you involves navigating complex legal, emotional, and practical considerations. While your child’s preference is important, it’s just one of many factors the court will consider when determining the best custody arrangement.

Both counties have specific procedures and resources that can help you through this process. By understanding the legal standards, preparing thoroughly, and maintaining focus on your child’s best interests, you can present the strongest possible case for custody.

Remember that regardless of the outcome, your ongoing relationship with your child and your ability to provide emotional support and stability remain paramount. Even if full custody isn’t granted immediately, demonstrating your commitment to your child’s wellbeing and your respect for legal processes helps establish a foundation for potential future modifications as circumstances evolve.

For specific legal advice tailored to your situation, consult with a qualified family law attorney practicing in Essex or Union County, who can guide you through this challenging but important process.