Hi I am the father of two boys ages 13 and 11 they have been living
with me for the last 15 months mainly because my wife and their mother
left the marital home.  We are going through this lenghly and costly
divorce and went to the ESP (early settlement panel) and the issues of
allimony and equipitable distrubution were pretty much settled my wife
getting half the equity of the house and half my retirement and I
would have to pay her minimal allimony.  But the issue of child
custody was not solved.  The court is making us go to a mediator to
try and settle the issue.  I believe my boys are adjusted, they have
their friends, pool basketball court, new responsiblities, and most of
all their grandparents 20 feet away. My questions are do I have the
right to be the primary custodial parent. Do you think the parenting
time should be split 50/50 and what are your true feelings on my
chances to win custody.

Thanks in advance

Ralph

Ralph- 
 
NJ like many states has a history of granting custody primarily to the
mother. However, unlike some states, they ostensibly base their
decisions on the following:
 
"Sole or joint custody may be awarded based on the following factors:
(1) the physical, emotional, mental, religious, and social needs of
the child; and (2) the preference of the child, if the child is of
sufficient age and capacity. No preference is to be given because of
parent's sex. A father may not forcibly take a minor child from a
mother's actual physical custody. [New Jersey Statutes Annotated;
Title 2A, Chapter 34-23 and New Jersey Case Law]."
 
What this means is that you have a few advantages going in spite of
the bias towards maternal custody. The biggest one being that you have
had custody and care of them for the last 15 months. The other is that
their social and emotional needs (i.e. the stability of staying where
they are and having access to the both their family and friends) from
what you are saying is better served by you being the CP (custodial
parent).
 
I can't give you actual legal advice here but I can give you some
ground rules.
 
When you go into mediation do not compare yourself and the soon to be
ex-wife. Do not say that you are the better parent. Make it all about
the situation. Make it all about the best interests of the boys. You
have a situational advantage since she left, but, you can sabotage
yourself by being too strident about her failings or too
self-righteous about the advantages to be found with you. Be
reasonable and be cautious.
 
The other thing you need to do is get a good lawyer. A good lawyer can
take that 15 months and argue abandonment on her part. You can't and
shouldn't do that in mediation. Once upon a time it was women that
went into these things unsure and under-represented. That has come
full circle at this point. You need legal representation for the best
outcome. If you can't afford that I would suggest you get in touch
with these people:
 
http://www.facenj.org/ 
 
They are a father's and children's rights group in your state. They
will be much more able than I am to advise you of not only your
chances but the strategy you should take. I, unfortunately, don't know
of any lawyers in New Jersey that specialize in family law. I do have
some feelers out to a couple I know in NY state that might be able to
give me a pointer for you. When is your mediation appointment? If you
give me a general sell-by date I might be able to light a fire under
my sources to cough up some counsel choices for you before then.

Ralph, I can't even give you an educated guess on your chances without
knowing where you are. How custody matters are handled and the most
likely outcome of the hearing is NOT the same in every state.

However, you certainly have the right to be the primary physical
custodian. Being male should not be a bar to that. In an ideal world
there should be a 50/50 split with both parents living in the same
area. However, it isn't an ideal world and life and logistics get in
the way of that. Also, depending on your situation it might not be in
the children's best interest to spend that much time with the
non-custodial parent.

Give me a little more detail and I will dig up some links to the laws
and statistics regarding what the court normally decides in your
state.

Arlene 

I can only tell you that I live in NJ.  Please tell me how you think
the mediator is going to sway and what I should tell him or her.  My
boys have been with me for 15 months, What are my chances?  What more
detail do you want? Thanks in advance.

Ralph

Ralph-

Sorry it took me so long to get back to you. 

NJ like many states has a history of granting custody primarily to the
mother. However, unlike some states, they ostensibly base their
decisions on the following:

"Sole or joint custody may be awarded based on the following factors:
(1) the physical, emotional, mental, religious, and social needs of
the child; and (2) the preference of the child, if the child is of
sufficient age and capacity. No preference is to be given because of
parent's sex. A father may not forcibly take a minor child from a
mother's actual physical custody. [New Jersey Statutes Annotated;
Title 2A, Chapter 34-23 and New Jersey Case Law]."

What this means is that you have a few advantages going in spite of
the bias towards maternal custody. The biggest one being that you have
had custody and care of them for the last 15 months. The other is that
their social and emotional needs (i.e. the stability of staying where
they are and having access to the both their family and friends) from
what you are saying is better served by you being the CP (custodial
parent).

I can't give you actual legal advice here but I can give you some
ground rules.

When you go into mediation do not compare yourself and the soon to be
ex-wife. Do not say that you are the better parent. Make it all about
the situation. Make it all about the best interests of the boys. You
have a situational advantage since she left, but, you can sabotage
yourself by being too strident about her failings or too
self-righteous about the advantages to be found with you. Be
reasonable and be cautious.

The other thing you need to do is get a good lawyer. A good lawyer can
take that 15 months and argue abandonment on her part. You can't and
shouldn't do that in mediation. Once upon a time it was women that
went into these things unsure and under-represented. That has come
full circle at this point. You need legal representation for the best
outcome. If you can't afford that I would suggest you get in touch
with these people:

http://www.facenj.org/

They are a father's and children's rights group in your state. They
will be much more able than I am to advise you of not only your
chances but the strategy you should take. I, unfortunately, don't know
of any lawyers in New Jersey that specialize in family law. I do have
some feelers out to a couple I know in NY state that might be able to
give me a pointer for you. When is your mediation appointment? If you
give me a general sell-by date I might be able to light a fire under
my sources to cough up some counsel choices for you before then.

Arlene
The information you provided me with is both positive and useful to
me.  Thanks also for the ground rules you provided.  These things tend
to get emotional so I'll take your advice. Unfortunatly I had two
laywers who obviously could not see what you have, I talking about the
15 month abandonment. Maybe since my wife makes 10K less than I do
they (the laywers) feel that alimony and child support should be a
wash. I don't know. I do not know when my mediation appointment will
be because the judge has to sign and submit a copy to the family
division in my town.  Thanks also for the lead on FACENJ.  I checked
out their web site. After this parenting mediation, I must we must see
a economic mediator, ordered by the court.  Thanks so much Arlene.  I
will post high marks for your answers.

Best Regards

Ralph

Ralph-

I will post my comment as an answer so that you can rate me but check
back for comments later this week.

Your lawyers are probably on the money about the alimony; that doesn't
have anything to do with the children produced in a union and has
everything to do with the length of the marriage and who is the higher
earner.

The child support thing is a little different. Because NJ operates
under a combined income/intact family model even if you make 10,000
dollars more than your wife this should be ameliorated by the time (in
a percentage) spent with the both of you. What kind of visitation has
she had? How much of a percentage of time spent in a month have they
been under her care?

For a basic child support guideline (and this assumes that one parent
has almost 100% physical custody) see this schedule:

http://www.judiciary.state.nj.us/csguide/ix-f.pdf

There should be a difference between the amounts on the schedule based
on the amount of time spent.

I have some questions out to those people who practice in that area
who will be able to explain it more completely but from my perspective
I don't think it should "be a wash" if you have been taking care of
them the majority of the time.