Category Archives: Mediation

Should I fight? Volume One: Child Custody

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

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Filed under Child Support, Divorce, Mediation, Uncategorized

Reader Suggestions, and a Word of Caution

I’m partial to reader topic suggestions, and a good one came in today from a submitter who will probably want to remain anonymous: “I’m always partial to the infidelity but we’re trying to repair the marriage topic.” That gave me an idea – I will briefly touch on that topic, but it brings me to something I feel really needs to be discussed more openly and frequently.

As you would imagine, infidelity, among a number of other potentially-infuriating discoveries, is a situation I deal with all the time in my professional capacity as both a divorce litigator and mediator.

What do you do when you find out your spouse is cheating, but you don’t want to jump to divorce? Of course, the option for couples therapy exists. The opportunity, once tempers have cooled, to engage in a productive discussion with a qualified professional may work wonders. Having an open channel of communication can be an invaluable tool in progressing to a mediated divorce agreement that both parties can live with without any of the destructive anger or animosity that so often colors divorces.

But what if it doesn’t work? What if there’s no way to avoid a divorce? And what if you can’t communicate and it gets to the point where, frankly, “either (s)he goes, or I go?”

When high emotions are involved, I often see divorces “kick-started” by the filing of a Domestic Violence Temporary Restraining Order; in effect, utilizing this as a tool to force the other party from the home. It happens all the time and it always results in misery. This is not, of course, to make light of situations of actual domestic violence – but to warn that it is used as a tool more often than I care to see.

I strongly caution against reflexively and angrily acting in any situation; twice so when a marriage is involved; and thrice so when there are children born of the marriage. It is precisely because of the effect visible anger has on children that I always recommend a cooling-off period before any serious action is taken. All too often, I see clients of all genders rush to file Domestic Violence actions, forcibly removing their spouses from their homes, in a mix of both stark revenge and punitive rage. These sorts of rash decisions can be life-altering and devastating, both emotionally and financially, to a family. When both sides hire attorneys and run to court, spending upward of $10,000.00 between the two parties for this one incident alone (before the divorce is even filed!) oftentimes, parents become shoehorned into a parenting time schedule that is imposed upon them without regard to their or their children’s lives and schedules. This schedule is then utilized as a vital component in determining child support figures either at that time or later on in the litigation.

If you see an attorney who recommends this as a strategy to kick-start a divorce, you should probably take a step back and ask yourself if what may work instead is a period of physical separation, followed by an honest dialogue, perhaps utilizing the services of an experienced and trained mediator such as Rick Silver of the Law Offices of Matthew C. Johnston, LLC. Mr. Silver is available to answer your questions about this or any other topic related to divorce and divorce mediation at 973-584-5402. He can also be reached at

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Filed under Divorce, Domestic Violence, Mediation, Temporary Restraining Order

Why Mediation?

I’ve recently gotten a number of inquiries about my mediation services. There seem to be a lot of you who want to get divorced and have been separated for some time but just don’t believe they have the money to invest in a protracted litigation.

Thankfully for those of you who are willing to negotiate your issues, we offer divorce mediation services.

Mediation is a good option for people who don’t want their final divorce settlement decided by a judge. It results in a negotiated agreement that provides you the relative comfort of reaching a settlement that you know is acceptable within your own financial constraints.

You are the master of your own settlement. My purpose as mediator is to identify the real issues and focus your time on those issues so that your settlement is reached as quickly and painlessly as possible.

Mediation may also be a good long-term solution as it appears from my experience that mediated settlements are much more likely to be adhered to than a settlement imposed by a judge.

If you can stand your partner enough to sit down in our office and hammer out a deal, and you would rather choose your own path rather than have one imposed upon you, The Law Offices of Matthew C. Johnston, LLC can help you.

Feel free to contact Rick Silver, Divorce Mediator as 973-584-5402 or at

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