After parents separate or divorce, life goes on; children grow older and their needs change. Parents move on, too, establishing new relationships or moving on to new jobs. Eventually, changed circumstances might require alterations in the custody terms. All states allow parents an opportunity to modify custody orders. In New Jersey, there's an easy way and a hard way to accomplish this.
The easiest way to change custody in New Jersey is to amicably work out a new agreement with your child’s other parent. Such an agreement must be in writing and filed with the court. You may have a lawyer draft the new consent order or write it yourself. Consent orders clearly specify the new terms on which you've agreed, along with language indicating that the parties want the new terms to replace the existing custodial court order. Both parents must sign it, then submit it to the court for the judge’s signature, which makes your new arrangement official.
If you can’t come to an agreement with your ex, you’ll have to use a court procedure. In New Jersey, this means filing a motion for modification. These motions are filed with the same court that granted your divorce or issued your existing custody order. The motion for modification process may involve two hearings. At the first hearing, the judge can order you to attend mediation to try to work out a new custody arrangement on your own. If you’re successful, the mediator will submit the new terms to the court, where the judge will issue a new custody order. If you and your ex fail to reach an agreement, you’ll have to go back to court for a second hearing, where the judge will rule on the matter.
Change of Circumstances
Your family's changed circumstances must be significant for a New Jersey judge to alter an existing custody arrangement, unless you do so by consent. A judge probably won’t grant a change of custody just because you don’t like your ex’s new girlfriend and you don’t want her around your child. But if his new girlfriend abuses drugs or alcohol and lives with your ex, this may constitute a significant change of circumstances that would convince the court to alter custody. If your ex plans to move out of state, this circumstance might warrant a change of custody so your child can remain with you. The court will consider if your child has close emotional ties to you and your neighborhood and whether she wants to leave. If your ex moves to a new residence that is simply too small for your child to have a bedroom of her own, this, too, might qualify as a significant change of circumstances and convince a judge to modify custody.
Burden of Proof
If you file a motion for modification, the burden of proof is on you to convince the court that the changed circumstances would be detrimental to your child. In this case, you must document how your child would be negatively affected, and attach copies of this proof to your motion papers. If your situation is too complicated to address at a simple motion hearing, the judge may order a plenary hearing instead. A plenary hearing is much like a trial, where you'll be permitted to call witnesses who can substantiate your case with testimony. Witness testimony usually isn't heard at motion hearings in New Jersey.