Many of our clients ask us, “How does the Court determine custody?” Well, it involves a process just like everything else the Court does. It starts with mediation for custody and parenting time. The Court Rules make it mandatory in cases where custody is an issue, both parties must go to mediation.
If the mediation goes successfully and both parties agree to custody an order is sent to the Court. If the mediation does not go smoothly, do not fret there are other avenues. Either party can ask for a Probation Department Best Interests Investigation. This is where the Court orders and investigation by the County Probation Office into the character and fitness of the parties, the economic condition of the family, and the financial ability of the party to pay alimony or support, or both. The Probation Report, filed no later than 45 days after the order for the investigation, once completed, will be given to both parties. The report will be received by the Court as direct evidence and can be used during cross-examination.
The parties will also have to submit a custody and visitation plan no later than 75 days after the last pleading. The Court will take the proposed plans into consideration. Also, the Court will take into consideration the wishes of the child. Depending on the maturity of the child, the Court may conduct an in-camera interview of the child to see what the child wants.
If the Court finds that the child’s interests are not being served by the parties or their attorneys, the Court will appoint and attorney to represent the child. When the issue reaches this point, the Court will hold a trial/hearing on the issue an enter an order it finds is the best interest for the child. We highly recommend the parties try to work it out themselves. Custody, as you can see from above, is long and it is taxing on everyone, even the courts.
Having a lawyer represent you in such a case is highly recommended. Experts may be needed to testify and having an attorney can make the hearings easier to bare.
Give us a call, 732-377-2005