Well, should you? The short answer is, in most cases, no.
In New Jersey, there are three types of custody: sole custody, joint custody, and shared custody.
In sole custody, the child lives with one parent who is responsible for all of the day-to-day decisions of the child. This is the least common type of custody arrangement;
In joint custody, the child lives with one parent, the other parent has a visitation schedule, and while both parents should decide what is best for the child, the custodial parent (the parent with whom the child lives) generally has the last word in parenting decisions. This is, by far, the most common custody arrangement;
Finally, there is shared custody, in which the child spends half of his or her time with each parent, and both parents have an equal right to all decision making involving the child. This arrangement requires a great deal of on-hands cooperation between both parents and is fairly uncommon since most divorcing parents want nothing to do with each other.
Here’s the truth behind all this: the New Jersey courts expect parents to behave like adults about child custody. If you do not already have your custody situation sorted out before you file for divorce, one of the first things that will happen is that you and your ex-spouse will be forced to attend an education program hosted by the courts in which you will receive information like this. It will be drilled into your head that the New Jersey court system would rather not tell you how to manage your children, and furthermore, that if the court is forced to render a decision, it will do so based on what the judge believes is in the best interests of the child. Before that even happens, you will be sent to custody mediation, where a court clerk will tell you all of these very same things, and attempt to get you to agree to a reasonable custody arrangement that both parents can live with.
Child custody trials are expensive. The child protection and child welfare agency may get involved, especially if allegations of abuse or drug addiction are made. Experts in child psychology will have to be retained at your expense. Case law will need to be meticulously reviewed and argued by your attorney. Witnesses will be called. Your child, if the judge deems fit, may have to testify before the judge. All of this, as you can imagine, is extremely disruptive to both parents and the child. And sole custody is only granted in the most extreme cases.
What you’re really talking about, in the end, is whether it is worth several years, and tens of thousands of dollars, and years of stress and fragmented relationships with both your ex, with whom you still must raise the child, and your child, just to have a judge give you an order you may not want to follow. In my experience, the answer, in most cases, is a definitive NO.
Here are my recommendations:
1. This isn’t about you, it is about your child. Generally, the best thing for the child is to remain with the spouse who spent the most time raising him or her.
2. It doesn’t matter that your spouse cheated, or that they have a new lover, or what sex the lover may be, or what that lover does for a living. It just doesn’t. Get over it. Your ex does not belong to you.
3. Just because you make more money, that doesn’t mean you’re the best parent for the child. Maybe you are, but the money part is fairly inconsequential.
4. Before you decide to fight, sit down with an experienced custody mediator, like me, or any number of other competing attorneys. But it should be me.
5. In the end, if you fight, you’ll generally end up with Joint Custody with a reasonable visitation schedule. So why pay $20-30,000.00 to fight?
6. Finally, and I can’t emphasize this enough: THIS IS YOUR CHILD. CHILDREN LOOK TO YOU AS AN EXAMPLE. Don’t be a petty jerk. Kids know.
Of course, if you have any questions whatsoever, or want to discuss this or any other options you may have with me, I am available at firstname.lastname@example.org.