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Custody – Back to the Basics Part II

Last month, I gave you the custody basics in about 500 words, but every time this topic comes up, it strikes me what a complex subject area of family law it really is – not to mention fraught with gut-wrenching emotion for most divorcing parents. Recall that we broke down custody into two integral parts: legal custody (major decision-making) and physical custody (minor day-to-day decision-making). This month, let’s take that a few steps further.

While the legal aspect of custody is not the culprit in most disputes between parents, it is worth substantial consideration. In Beck v. Beck, 86 N.J. 480 (1981), our Supreme Court first expounded on joint legal custody, meaning that both parents have equal rights and responsibilities and share in the major decision-making. With joint legal custody, parents need to “isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor” Id. at 498. In Sum, parents need to communicate and cooperate when it comes to the health, safety, and welfare of a child. While the Court in Beck declined to create a legal presumption in favor of joint legal custody, it is nonetheless the public policy of this state. However, a court can decide against this if it finds that the parties cannot put aside their acrimony or animosity towards one another to focus on the best interest of the child.

Today, most divorced parents share joint legal custody, with one parent having physical custody for the majority of the time (we refer to this parent as the “Parent of Primary Residence” and the other parent as the “Parent of Alternate residence”). Lately, there seems to be a trend towards one parent vying for joint legal and physical custody, where the major and day-to-day decisions are shared and the child spends equal time (or close to it) with both parents on a continuous rotational schedule (i.e., four days with one parent and three with the other, or some other variation). Keep in mind, however, that joint legal and physical custody is not appropriate in every case and is still somewhat rare. First, I say this because there are some cases where joint legal custody is unworkable, meaning that the parents barely communicate with one another and cannot cooperate on child-related matters. Second, in most cases, practical problems abound. For instance, if one parent travels frequently or works long hours, this type of arrangement may not be appropriate. Similarly, if the parties live far apart, this could pose a problem, especially with regard to schooling. Another example is where a child has special needs and stability in their daily routine is paramount. Or sometimes it is just a fact that frequent shifting between two households is just too emotionally and physically difficult for a child. Quite simply, joint legal and physical custody must be workable, otherwise the “best interests of the child” is reduced to a meaningless phrase. We cannot lose sight of the fact that our perceived needs as parents in a divorce may not ultimately be best for the child.

Come in today for your in-depth legal consultation so that we can discuss the custody issues in your case and how to best proceed in your divorce.

Until next month…SSC

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