In New Jersey, there are a number of routes divorcing parents may regarding child custody issues. Beyond the parents’ needs or desires, focus on the children’s best interests is of paramount importance to the courts and the public, and the parents should share that concern. This goal is also the focus of any court proceeding should the parents be unwilling or unable to hammer out a custody agreement through negotiation or mediation.

Critical differences

It is important to distinguish between legal custody, which parents almost always share, and physical custody of children. The term “legal custody” refers to the authority to make important decisions in a child’s life, from healthcare to education to religious observance. Primary physical custody, on the other hand, refers to the parent with whom – and the home at which — the child spends most of the overnights, and is sometimes referred to as “residential custody”. To that end, “shared physical custody” describes an arrangement in which a child lives with one parent for the majority of time, spending at least two overnights each week with the other parent, in addition to some holiday and vacation time with the other parent.  “Sole physical custody” involves a parent who has substantially all of the overnights with the child or children, because the other parent spends less than two overnights each week with the children, down to zero overnights.

Tall order

As its name implies, “joint physical custody” of children means a far more time-balanced arrangement, through which parents share almost equal time with the child or children. This arrangement remains relatively rare due to conflicting work responsibilities, the history of parenting time while the parties were an intact family, and the extensive amount of cooperation it requires from both parents, which can be challenging at best after a divorce. Indeed, divorcing spouses should carefully weigh the perceived benefits of joint physical custody with the significant challenges such an arrangement can present.

Honest evaluation

With this last point in mind, parents contemplating “joint physical custody” should honestly evaluate the effect such an arrangement will likely have on their children and each other. Among the factors parents should consider are:

• The impact that frequent exchanges of children between ex-spouses might have on children;
• The children’s ability to constantly adjust and readjust to the expectations, environments, cultures, and rules in different homes; and
• The extent to which such an arrangement might be disruptive to children’s education and social life, compounded in situations where children have learning issues, challenges, and/or special needs.

Nesting Arrangements

A parenting tool we have seen work, again with a small subset of families, involves leaving the children in the former marital residence.  The parents rotate in and out of the house on an alternating basis, which gives the children some much-needed stability during a divorce-induced transition period.  The parents could share an apartment on the alternating basis, or each could find temporary housing on their own.  For some families, this is a miracle formula.  For others, it is a non-starter.

Pending NJ Legislation

A “father’s rights” bill has been introduced in the NJ Legislature that would create a presumption of joint physical custody, with an objecting parent having the burden of proving that the arrangement is not in the children’s best interests.  Given the prevalence of domestic violence and the emotional difficulties facing both parties and their children during divorce, our attorneys, while favoring gender equality as it relates to custody and parenting time, nevertheless do not favor a presumption of joint physical custody.  The current system is neutral as to custody and parenting time, and leaves it to the parties and their psychological experts to present to each other, mediators, arbitrators, and the courts the evidence favoring various custodial and parenting time arrangements, with the children’s “best interests” always remaining paramount.

Conclusion

Parents who agree on physical custody and parenting time arrangements serve their own interests and those of their children, by clearly laying out in writing, at the outset, the parties’ rights and obligations and the children’s reasonable expectations in the matter.

If you or someone you know is facing a crisis or concern about child custody and parenting time, please call or write us today.  We will listen to the facts, research the law, and present an opinion and recommendations as to the best course of action to take.  We are compassionate counsel and tough advocates, whether as negotiations consultants or presenters in mediation, arbitration, or contested court proceedings.  Let us help you reach solutions that are just and reasonable for the children and you.