Skip to Content

Who Gets Custody While Divorce is Pending?

Child custody is often a matter of significant conflict in New Jersey divorces. It can be difficult to set aside the hurt and anger that divorces often involve and try to agree to a child custody arrangement, especially while the divorce is ongoing. Divorcing parties are often confused about their legal rights while the divorce is pending–can one parent make a custody decision without the other? Can the court make a decision, even before the divorce is finalized? Read on for a discussion of how custody is handled while the divorce is still ongoing, and reach out to a knowledgeable Englewood child custody attorney for help with a New Jersey family law matter.

Pendente Lite Agreements and New Jersey Divorce

Ideally, the parties to a divorce will be able to reach a full settlement, addressing all aspects of the divorce including property distribution, alimony, child support, and child custody. Even if the parties have not yet reached a full settlement, however, they can create a temporary agreement that applies only while the divorce is still pending. This is known as a “pendente lite” or “pending litigation” agreement.

A pendente lite agreement can cover a number of issues, including temporary child custody, temporary child support and temporary alimony. The ultimate resolution may look nothing like the temporary arrangement set up during the divorce, but it allows the divorce to proceed without constant squabbles over custody issues and without fear that the temporary agreement will necessarily affect future rights. The final child custody order (assuming the parties do not come to agreement) will generally not take into consideration the temporary child custody agreement.

Parties can agree on their own or petition the court to establish a pendente lite arrangement for them. One or both parties can request a temporary child custody hearing, at which the court will hear arguments and accept evidence from both sides on child custody and/or other matters that need to be resolved while the divorce is still ongoing. The court will then issue an order that will address child custody until the final agreement or judgment is reached.

Factors for Temporary Custody

Assuming the parties cannot reach an agreement on their own, the New Jersey family court will hold a hearing and conduct an analysis to determine the most appropriate custody arrangement. The court will consider several factors in making its decision, including the following:

  • The best interests of the child
  • Each parent’s financial situation and their ability to provide for the child
  • Each parent’s physical and mental health
  • Each parent’s relationship with the child, including who has been more involved with child care
  • The needs of the child
  • Whether either parent is relocating
  • The ability of the parents to communicate and co-parent effectively

The court can grant sole physical custody to one parent and parenting time to the other, split custody between the parents equally, or grant one parent the majority of nights and the other parent parenting time/visitation.

Make Sure to Keep Up With Your Kids During the Divorce

Divorces are challenging and often all-consuming. It’s easy to get caught up in the significant life changes that they bring. Unfortunately, it can be easy to forget to make parenting time a priority when there’s so much upheaval around you.

Regardless of whether you are the “custodial” or “non-custodial” parent, it’s important to keep to your parenting time arrangement while the divorce is pending. If you are granted parenting time or shared custody, stick to the arrangement. If you start to miss parenting time with your kids, including missing the nights when you have custody, you may be granted more restricted parental rights in the ultimate custody decision. If the current arrangement no longer works with your schedule, you can always ask your co-parent or even the court for a modification.

Dedicated Advice and Representation for New Jersey Child Custody Matters

If you’re facing the prospect of divorce in New Jersey or dealing with child support, child custody, property division, or other family law issues, contact the Englewood family law attorneys Herbert & Weiss at (201) 500-2151.