What to Expect at a New Jersey Custody Hearing

Before the hearing: the custody plan

In any family action where the parties cannot agree on custody or parenting time, each must file a Custody and Parenting Time/Visitation Plan, which the court considers in deciding custody and setting a schedule (R. 5:8-5(a)). It is due no later than 75 days after the last responsive pleading, or, if mediation was conducted, no later than 14 days after an unsuccessful mediation. The plan must include at least:

1. the parties’ addresses and employment;
2. the type of custody requested and the reasons for choosing it;
3. a specific parenting time schedule covering weeknights, weekends, vacations, legal and religious holidays, school vacations, birthdays and special occasions;
4. access to medical and school records;
5. the impact of any contemplated change of residence by a parent;
6. participation in decisions about the children; and
7. any other pertinent information.

Failing to comply with the plan requirement may lead to dismissal of the non-complying party’s pleadings or other sanctions (R. 5:8-5(c)).

The custody hearing

• Timing. Where custody is a genuine and substantial issue, the court sets a hearing date no later than six months after the last responsive pleading, and may hold the custody hearing before the final hearing on the rest of the case (R. 5:8-6).
• The child. The court may interview the child in camera on its own motion or at a litigant’s request. Absent good cause, it decides whether to do so before trial, and if it declines it places its reasons on the record (R. 5:8-6). The court may also direct that a proceeding involving a child be held in private and that the child not be present unless the testimony is necessary (R. 5:3-2(a)).
• Findings. The court must specifically place on the record the factors justifying any custody arrangement not agreed to by both parents, and, if it rules contrary to the child’s expressed preferences, the factors justifying that decision (N.J.S.A. 9:2-4(f)). The order must set out fully and specifically all terms of the custody award and child support (R. 5:8-5(b)).
• Final order. Any judgment or order entered after the custody hearing is treated as a final judgment or order for custody (R. 5:8-6).

What to bring

The FD kits tell both parties that their appearance is mandatory and to bring documentation or proof that supports their case. If support is in issue, they say to bring financial information such as your last three pay stubs and most recent W-2, and the Verified Complaint form says you must have your most recent federal income tax return or your three most recent pay stubs at the hearing. You may bring an attorney, but one is not required.

Motion days in FM cases

Post-judgment requests in divorce cases are heard as motions. The Judiciary’s divorce self-help page notes that a motion date is not a trial, that most motions are decided on the papers, and that the judge decides whether an oral hearing is needed. Under R. 5:5-4(e), in a motion scheduled for oral argument the judge may post a tentative decision before the motion date; unless a party renews the request for oral argument, the tentative decision becomes final. Absent good cause, a written order is entered at the end of each motion hearing (R. 5:5-4(f)).

After the decision

• Appeal. Appeals from final judgments must be filed within 45 days of their entry (R. 2:4-1(a)). Applications for leave to appeal interlocutory orders follow R. 2:5-6(a) (R. 2:4-1(c)).
• Reconsideration. The Judiciary lists a $50 fee for a motion for reconsideration in FD cases, and its post-judgment packet covers reconsideration motions in FM, FD and FV cases.

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. 5:8-5, custody and parenting time/visitation plans
• R. 5:8-6, trial of custody issue
• R. 5:3-2, closed hearings
• R. 5:5-4(e) and (f), tentative decisions and orders
• R. 2:4-1, time for appeal
• N.J.S.A. 9:2-4(f), findings on the record
• NJ Courts, FD fees
• NJ Courts, modifying a divorce order