Custody decisions have come a long way since our parent's generation, when custody was often awarded to the parent who could out-lawyer the other. Thankfully, the New Jersey family courts have greatly evolved in their approach to a fair and balanced parenting plan that's in the child's best interest. However, custody and parenting time myths continue to persist, even in a society of stay-at-home dads and moms who pay child support. On the one hand, these examples of egalitarian, gender non-conforming situations are wonderful advancements in the world of parenting. On the other hand, they may be the reason why people believe the courts favor joint custody, especially for babies and young children.
In truth, the courts favor parenting plans that are in the child's best interest. Infants, for example, often spend longer periods of time with the mother if they're being breastfed. Hence, the courts are likely to award primary physical custody to the mother, with the possibility of modifying the plan once the child gets older. Still, older children may not adjust well to a joint custody situation that requires them to ping-pong from one home to the other during the week. Based on their schedules, maturity level and need for consistency, it may be best for them to stay in one home most of the time. Finally, we have to think about the parents and their schedules. Courts are aware that many parents want joint physical custody, but their schedules and personal responsibilities may not make that situation possible. That's why the courts encourage parents to come up with a sensible plan on their own, but if need be, they'll consider the full ramification of all relevant circumstances, with no presumption toward a specific arrangement.
In spite of these realities, there has been a move in 20 states, including NJ, to promote shared custody after divorce. It's important to stress the word “shared”, rather than joint, which seems to imply a 50/50 arrangement. This is actually the most popular arrangement nationwide, in particular, the arrangement of one parent taking the kids for the weekend, while the other parent has them for the week. Still, the overall desire seems to be the encouragement of joint parenting, or as close to it as possible, based on two bills that were introduced in the NJ Legislature in November 2017. The bills propose that the courts would be required to presume joint custody, and that parenting time would be as close to 50/50 as possible, regardless of the parents' wishes. As mentioned before, NJ is only one of 20 states considering this proposal. Other states point out the obvious drawbacks we mentioned above, and the possible upheaval this may cause in a child's life. In addition, it doesn't address situations involving parental abuse, or domestic violence and restraining orders. So far, this is only a proposed amendment, but it will be interesting to see the Legislature's views on the idea of enforced joint physical custody.