If there’s already a custody order in place, you must file a motion for a modification of child custody. If there’s no existing order, you’re free to begin custody proceedings. At the end of the proceedings, the court will make an initial determination of custody.

The Custody Complaint

The process begins with the drafting of the complaint which must be filed in the superior court of the county where the child resides (if your child doesn’t live with you). In addition to specific information about the parties’ and your child’s demographics, other information is included in the complaint/motion for custody:

  • The type of custody that you’re seeking
  • A parenting plan
  • Any genuine and substantial issues regarding custody or parenting time

Types of Custody

In New Jersey, there are two types of custody that you will reference in the complaint: legal custody and physical/ residential custody. Legal custody grants decision-making rights to the parent and physical custody determines which parent the child will live with. You may file for both.

Custody is further divided into sole custody (means only one parent has custody) and joint custody which means that the parents share custody.

Parenting Plan

Parents must come up with a parenting plan which they submit to the court for approval. The agreement details plans concerning the child’s custody and visitation. It should be as specific as possible and reflect stability for your child.

Mandatory Mediation

This is the process that tries to reach agreement between the parties before trial. The exception:

cases in which a final restraining order has been entered as a result of domestic violence.


When parents can’t resolve the custody issues through mediation, then the law permits the court to conduct investigations before any custody award is made to either parent.

The investigation will include a review of the following:

  • The parents’ character/fitness;
  • The family’s economic condition;
  • The parties’ homes and household members; and
  • Criminal record checks for both parents.
Each side will present evidence in the case.

The court makes custody decisions based on the “best interests of the child” factors.

Once the initial custody determination has been made, either parent may move to change the arrangement only when there’s been a substantial change in circumstances that impacts the child’s welfare.

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