Challenges of Lacking Court Orders for Custody in New Jersey

You Can More Easily Enforce the Conditions of Your Custody Agreement if They Are Outlined in a Court Order. 

Challenges of Lacking Court Orders for Custody in New JerseyPerhaps you started your co-parenting journey thinking and hoping that you would be able to navigate shared time with and responsibility for your child without involvement from the courts. While it is true that family issues are best resolved through a meeting of the minds, it is also very beneficial to have those terms in writing, approved through a court order.

In a nutshell, having the terms of your custody arrangement within a court order gives you the ability to more easily enforce those terms. The power of a court order can also work to dissuade one parent from trying to unilaterally change the agreed-upon arrangement or manipulate the situation. In an effort to keep a situation low-drama, parents can often leave the door open for more serious disputes down the line with custody arrangements that are not memorialized in a court order.

Here, we will discuss the purpose of a custody order in New Jersey, the process of obtaining an order, what to do in a custody dispute when there are no existing court orders, and how our dedicated family lawyers at The Montanari Law Group can help if you are facing custody issues in negotiating, mediating, litigating, agreeing upon, or enforcing an existing custody order.

The Role of a Custody Order in New Jersey

A custody order sets forth a lot of important details including legal and physical custody of the child and, if applicable, terms of visitation. Legal custody refers to legal decision making power regarding the child’s medical care and education. Physical custody deals with where the child’s primary residence will be, whether their time will be split jointly between the parents or if one parent will have sole physical custody, and the specific days, times, and holidays each parent will spend with the child. These details are also important in determining child support. Beyond providing clarity, a custody order makes these provisions enforceable by the court, which both incentivizes the parties to comply with the terms of their custody arrangement and provides each parent with a clear avenue for recourse if the other parent violates the terms of the order.

Steps for Obtaining a Child Custody Order

Custody orders may be part of a divorce decree if the parents were married. If the parents were unmarried one parent may file a custody complaint with the court, petitioning for custody of their child or, if the parents can agree to the terms of custody, they may present these terms to court to be made official in a court order. Typically, the court will require the parties to go through mediation or some form of alternative dispute resolution, unless the facts of the case are such that a clear action by the court is necessary. For example, where the court finds that one parent has abused the child or is battling a serious drug addiction, mediation will not likely be required.

The process of petitioning for custody of a child or obtaining a custody order involves following very particular procedural rules and presenting your position as in the best interests of the child. To accomplish this effectively, it is important to seek the counsel and assistance of an experienced custody and family lawyer.

Understanding “De Facto” Custody and Your Rights When No Court Orders Are in Place

When there is no custody order to dictate how two parents will share their time with their child, the court will look to the parent’s so-called “de facto” custody terms. De facto custody arrangements are the way two parents have been handling physical custody, living arrangements, and visitation in lieu of an actual court order dictating these terms.

The way these conditions have played out in the life of the child may influence the court’s determination of the best interests of the child, as stability and continuity are recognized as important factors in a child’s life; however, they are not dispositive and the court will not necessarily issue an order with custody terms identical to the parent’s previous de facto custody terms if it finds that those terms would not serve the best interests of the child.

De facto custody arrangements may also not reflect a parent’s legal rights or responsibilities to a child. Without a court order limiting the rights of either parent, each parent has equal legal rights and the right to equal custody of the child. Absent a court order stating otherwise, both parents also have an equal obligation to care and provide for the child.

How to Obtain a Child Custody Order in New JerseyBenefits of Obtaining Custody Orders from NJ Courts

When at all possible, negotiating the terms of a custody arrangement with a neutral mediator can help the parties to reach custody terms that best reflect their desires. While relying on a judge to determine your custody arrangements may be necessary, depending on the situation, it is less than ideal to leave such significant and personal family matters up to the court, if the parties are able to reach an agreement together. However, it is very important to obtain a custody order from the court to make these terms enforceable.

There are many advantages to both parents and their children in obtaining a custody order rather than relying on a de facto or unofficial agreement between the parties, even if it is not required by law, including predictability for all parties, leveling the power dynamic between the parties, and creating a clear procedure through which each party can enforce the terms of the agreement.

Facing Decisions Regarding Custody Orders in New Jersey? Contact The Montanari Law Group for Support

If you’ve been coordinating your custody arrangements on the basis of a handshake with your child’s other parents, without an official court order, it is wise to get that agreement memorialized with the court’s stamp of approval sooner rather than later. It’s not uncommon for people to not want to “rock the boat” when an arrangement is working, but that may be just the right time to obtain a court order while all parties are in agreement.

Perhaps, your current arrangements are not working out, and you need help to make sure that your child’s best interests are being served. Our team of family law attorneys at The Montanari Law Group has helped countless parents navigate their child custody issues. We invite you to book a free consultation to determine your best next steps. We will examine the facts of your case and create a strategy to protect your and your child’s interests. Contact us at (973) 233-4396 or toll-free at (888) 877-798 for a free consultation with an attorney who can address all of your custody questions and concerns anywhere in Clifton, Ringwood, Haledon, Millburn, Bergenfield, Caldwell, Wayne, West Orange, and throughout Passaic County and Northern New Jersey.


To speak with one of our highly knowledgeable attorneys, contact us today at (973)-233-4396 or toll-free at (888)-877-7985. You can also complete the form below to begin your conversation. We are a personalized, boutique-style law firm that offers free initial consultations and flexible appointment options.