Written by attorney Jef D Henninger

Winning a Child Custody Motion in New Jersey

Custody battles are some of the most important cases that a lawyer can handle in New Jersey. That's why we call them battles. There are two different types of custody applications: complaints and motions. A complaint is for an initial custody determination. If the parties are getting divorced, the divorce complaint will cover custody and all other issues. A motion is a legal application where one party is asking the court to change the current custody situation.

The distinction between between complaints and motions are important because with a motion, you have to show changed circumstances. In other words, what has happened since the last time you were in court that would warrant a change in the custody order? It is incumbent upon you as the person filing the motion to prove that. Of course, its not that easy, not even for child custody lawyers. Thus, going it alone without a lawyer could make your case impossible. In fact, you may never even see a judge. If you go without a lawyer, you may be put in mediation where you may be pressured to settle the case for less than what you want.

I've never met a client that drafted a good custody motion. Heck, I've met a lot of lawyers that didn't draft a good one either. The secret to drafting good motions is to leave the emotional stuff out of it and focus on the facts that you can prove. Back up everything you say and hold nothing back. A hard hitting, well organized motion filed ahead of time can pay big dividends. Judges are people to and waiting till you get to court to explain your position is never a good strategy. You are putting the judge on the spot and asking him/her to make a knee-jerk decision on a very important issue. Giving the judge a good motion ahead of time is how these motions can be won.

Winning a custody motion in New Jersey is not just about throwing mud, its also about deflecting mud as well. If you have any suspicion that the other side will throw any mud at you in court, you must work with your lawyer to inoculate yourself against any and all claims. Too many people just wait to see what will happens so that when the other side throws this mud, it is too late to do anything about it.

If you lose your motion, discuss the option of filing an appeal. Judges are not robots and you lose cases you should win. Thankfully, we have a higher court in New Jersey called the Appellate Division that can review your case. However, in order to win your appeal, your motion papers have to be in order so that you can make an accurate record for the appeal. An appeal is not a do-over; it is a review of what happened at the trial level. Thus, if you don't do it right the first time, you might be barred from fixing the motion at the appeal. Of course, if you have the right lawyer, this shouldn't be an issue.

Finally, you have to have patience and a will to fight. Some cases look hopeless because they go on for so long with little to no improvement in the custody situation. However, those that can hang in there for the long haul may be rewarded. We have seen it time and time again. An aggressive lawyer will not let you give up and will instead counsel you to hang in to the end.

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