How Custody Court Works in New Jersey

The court

All actions in which the principal claim is unique to and arises out of a family or family-type relationship are filed and heard in the Superior Court, Chancery Division, Family Part (R. 5:1-2(a)), and every family action is captioned in the Chancery Division Family Part (R. 5:4-2(a)(1)). The Judiciary’s self-help materials send filings to the Family Division of the courthouse in your county.

When parents live separately, or are about to, the Superior Court has the same power to make orders about a child’s care, custody, education and maintenance as it has in a divorce (N.J.S.A. 9:2-3). Until custody is finally decided, and unless the parties agree otherwise, the court decides temporary custody based on the child’s best interests, with due regard to the caretaking arrangement that existed before. The same section says no child shall be taken forcibly or against the will of the parent having custody by the other parent without a court order.

FD and FM: two different tracks

The letters at the start of your docket number tell you which set of procedures applies, and the Judiciary publishes separate forms for each. Keep them straight from the start.

• FD (non-dissolution). The Judiciary describes FD cases as non-dissolution cases involving parents who are not legally married, or other adults asking for relief on behalf of minor children, and says they can also include married people who are separated but need financial support. Its self-help page lists who can file: a parent who is not married; a married parent who has not filed for divorce and wants paternity, custody, parenting time, visitation, child support or health insurance coverage; a married parent seeking spousal support or health insurance coverage; a grandparent or adult sibling seeking custody, visitation, child support or health insurance coverage; and anyone filing a counterclaim or response.
• FM (dissolution). FM cases involve divorce, ending a civil union, or ending a domestic partnership. Custody, parenting time and support are decided within that case, and later changes are made by post-judgment motion.

FD cases are Family Part summary actions. Rule 5:4-4(a) says summary actions include all non-dissolution initial complaints and counterclaims and all applications and cross-applications for post-dispositional relief, and that applications for post-dispositional relief replace motion practice in those cases. The court may still, in its discretion or on either party’s application, expand discovery, enter a case management order, or hold a plenary hearing.

Where to file

In an action involving the custody of a child that is not joined with a divorce, dissolution or nullity claim, venue is laid in the New Jersey county where the child was last domiciled, if New Jersey is the child’s home state (R. 5:2-1(b)(1)). Actions primarily about child support or parentage are laid in the county where the child is domiciled, if New Jersey is the home state (R. 5:2-1(a)(1)). Divorce venue follows R. 5:7-1 (R. 5:2-1(c)).

“Home state” means the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the custody proceeding began, or, for a child under six months old, the state where the child has lived since birth; temporary absences count toward the period (N.J.S.A. 2A:34-54). Under the Uniform Child Custody Jurisdiction and Enforcement Act, apart from temporary emergency jurisdiction and a deployment provision, the grounds in N.J.S.A. 2A:34-65(a) are the exclusive basis for a New Jersey court to make an initial custody determination (N.J.S.A. 2A:34-65(b)). The first is that New Jersey is the child’s home state when the case starts, or was within the six months before and a parent or person acting as a parent still lives here.

How papers are filed

The Judiciary Electronic Document Submission system (JEDS) lets self-represented litigants submit documents for Child Support/Custody and Divorce cases, among others. You register first; JEDS works on a computer or laptop but not on mobile devices; documents must be in .pdf, .docx or .jpg format; and fees can be paid by credit card, debit card or ACH transfer. The FD and post-judgment self-help pages also allow delivery or mail to the county courthouse.

The fees the Judiciary lists include: no fee to file an FD case with the CN 11492 kit; $25 to request a modification in an FD case with CN 11487; $50 for a motion in an FM case; and $6 to apply for full child support services. A fee waiver is available if your income and assets are low enough.

The steps in a typical custody case

1. Filing. An FD case starts with a verified complaint on the form promulgated by the Administrative Director of the Courts (R. 5:4-2(i)). In a divorce, custody claims are part of the complaint or counterclaim.
2. Notice. In FD cases the Family Part can serve the papers by certified and ordinary mail (R. 5:4-4(b)), and the court sends a Notice to Appear when the case is scheduled. See the service guide.
3. Education and consent conference. In all initial FD cases where parents or caregivers seek custody or parenting time, the parties attend the non-dissolution education program and a consent conference (R. 5:8-7). In divorces where custody, visitation or support of a child is in issue, the court orders the parties to the Parents’ Education Program unless an exception applies (N.J.S.A. 2A:34-12.5).
4. Mediation. If custody or parenting time is a genuine and substantial issue, the case is referred to custody mediation, with domestic violence exceptions (R. 1:40-5(a); R. 5:8-1).
5. Custody plans. Where the parties cannot agree, each files a Custody and Parenting Time/Visitation Plan (R. 5:8-5(a)).
6. Hearing. Where custody is a genuine and substantial issue, the court sets a hearing date no later than six months after the last responsive pleading (R. 5:8-6).

Privacy

The court may, on its own or a party’s motion, direct that a proceeding involving the welfare or status of a child be conducted in private, and may order that a child not be present unless the child’s testimony is necessary (R. 5:3-2(a)). Family Case Information Statements and Financial Statements in Summary Support Actions are excluded from public access under R. 1:38-3(d)(1), except for parties and their counsel.

Primary sources

Rules and forms change. Check the current version at the source before you file. New Jersey statutes are published by the Legislature, and the Rules Governing the Courts by the Judiciary. Neither site offers a stable link to a single section, so statute and Court Rule links open the official search page; search there for the citation shown.

• R. 5:1-2, actions cognizable in the Family Part
• R. 5:2-1, venue
• R. 5:3-2, closed hearings and records
• R. 5:4-2, complaint
• R. 5:4-4, service and post-dispositional applications in summary actions
• R. 5:5-1, 5:5-2 and 5:5-3, discovery and financial statements
• R. 5:8-5, 5:8-6 and 5:8-7, custody plans, hearings, and the non-dissolution education program
• R. 1:40-5, mediation in Family Part matters
• R. 1:38-3, records excluded from public access
• N.J.S.A. 9:2-3, custody when parents live separately
• N.J.S.A. 2A:34-54 and 2A:34-65, home state and initial custody jurisdiction
• N.J.S.A. 2A:34-12.5, Parents’ Education Program
• NJ Courts, child support and custody (non-dissolution) self-help
• NJ Courts, FD filing fees
• NJ Courts, post-judgment motions
• NJ Courts, JEDS electronic filing