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Custody and Visitation

In the context of divorce and family law, Custody means protective care or guardianship over the children of the relationship. Custody is the framework for sharing decision-making abilities between parents and where the children rest their heads at night.

There are two types of custody:

  1. Legal custody – who has the legal rights of making all the major life decisions for the children (medical, education and travel).
  2. Physical or residential custody – which parent will the children live with.

Custody can be shared in three ways by the parents:

  1. Joint legal and joint residential custody.  This means that parents equally share parenting decisions for their children and the children split their residence between the two parents. In such arrangements, it is important to spell out which days the kids spend the nights and days with each parent very specifically.  Also, an experienced divorce attorney will set up a contingency plan for what happens when the two parents are not able to agree on a major decision because after all, if they were able to agree they would not be separating or divorced.
  2. Joint legal custody and one parent has primary residential/physical custody.
  3. Sole custody – one parent has full legal and residential custody with the other non-custodial parent having a visitation plan.

Very rarely will the courts prevent a biological parent from visitation.  To eliminate visitation by one parent completely, the burden of proof is very high and rests on the party seeking to prevent visitation must demonstrate that the other parent’s visitation would hurt the child (such as in cases of sexual abuse).

The courts go to great lengths to ensure some type of visitation by a biological parent even if that parent has addiction problems, orders of protection from the other parent, criminal history or being detained or mental illness.

Each custody arrangement carries certain obligations for both the custodial parent and the non-custodial parent in relation to the other. For example, even if one parent has full sole custody of the children, the custodial parent is under obligation to inform the other parent in case of illness or an emergency that happens to the children.  Even the non-custodial parent has rights to the children’s educational and medical records and to participate in major decisions.

Once the parties establish the custody arrangement, it is important to set up a visitation plan.


The courts work hard to ensure that each parent has equal time with the children and that visitation and custody arrangements give this opportunity.

With custody and visitation arrangements, the courts take into consideration the children’s best interests, work schedules of both parents, geographic locations of the parents and children (i.e. one parent living in another state, having moved after divorce), children’s activities, children’s health, special needs of the kids and parents, and other unique things that each family has when making determination of designating the days, times and periods of visitation.

In New Jersey, the courts require parents to attend parenting classes prior to finalizing their divorces and sometimes are required to do mediation about parenting, custody and visitation.

Parenting plan for long term

Besides establishing custody and visitation for school days and weekends, each couple should have long term post-divorce plan to follow for annual holidays, school breaks, vacations and summertime spent by each parent with the children.

Relocation by custodial and non-custodial parents.

What happens if the divorce was in Brooklyn, New York, but the mother remarries to a life-long New Jersey resident and wants to move with the kids to a part of New Jersey that would require the father to drive 2 hours one way to pick up the kids for his visitation. Sometimes, the parties can agree about a specific mile radius within which either parent can relocate from their current home base without going to court for disputing the move.

Conversely, what if the con-custodial father receives a job offer taking him to California and the parents need to come up with a creative parenting plan that would allow an alternative visitation schedule of the father visiting the kids once a month for 4 days in a row.

Each parenting situation is unique and requires a long deep analysis by experienced and knowledgeable family law attorneys.

Custody, visitation and parenting plans have be drafted and negotiated masterfully by experienced matrimonial attorneys, and Shepelsky Law Group attorneys do this work on a daily basis with empathy and knowledge.

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