Well, it is now official: Tom and Katie are splitting up. But, were we surprised? Good thing they have a prenuptial agreement. While the document protects their interest in property and personal affects, what about Suri, their six (6) year old daughter? There may be a custody battle here if the prenuptial agreement is silent with regard to children. But, what exactly would they be fighting about?

Parents must understand that there are two types of custody: legal custody and physical custody. Legal custody is about the important decisions parents make with regard to the child. Examples that come to mind are religion, schools, medical procedures or college. It is important to note that there is a presumption that both parents are “fit” and able to care for their children. As such, the Courts view parents equally and thus, outside of evidence to the contrary, Courts are inclined to award joint legal custody. Physical custody is different from legal custody in that it pertains to the physical location (or residence) of the child and permits the parent of primary residence to render the day-to-day decisions. This is where most parents disagree and where Courts intervene.

In New Jersey, there are many factors a Court will review when considering custody of a six (6) year old child. For instance, the Court may take testimony about the relationship of the child with the parents, the litigants’ ability to communicate with each other and to co-parent and the history of cooperation between the parties. The geographical location of the parents’ homes is also important with regard to physical custody. The needs of the child are paramount as is the stability of the home environment. Work schedules will also be considered.

All in all, the Court will weigh what is in the best interest of the child. The Court may seek the opinion of expert psychiatrists, psychologists or therapists to help the Court make a decision. It may also hire a guardian ad litem for the children or appoint an attorney to represent the interest of the children exclusively. As you can see, a custody battle can be extremely costly if the parents are unable to agree upon a custody plan.

If you have any questions about the custody of your child and need to speak to an attorney about your rights, contact Iandoli & Edens, LLC at 908.879.9499 for more information. We are here to help.