Edward R. Weinstein, Esq.

Why Do I Deserve Joint Legal Custody Of My Child In New Jersey?

I have been a practicing child custody attorney in the state of New Jersey for the past two decades. Throughout my career, I have personally seen the vast array of emotions involved in child custody battles. In most divorce or child custody cases, I have found from a lawyer’s perspective that parents will fight to the bitter end for their children. In the New Jersey Supreme Court of Beck v. Beck, a father exercised all his legal options to try and receive joint custody of his children. Any attorney who focuses on family law knows that this case set the record straight that New Jersey favors joint custody arrangements when they are possible.

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In the 1981 case of Beck v. Beck, Arthur and Susan Beck divorced and were granted joint legal and physical custody of their two adopted daughters. While neither party requested joint custody, the trial court still found the same to be in the best interest of the children. The wife appealed. The Appellate Division found in her favor and awarded her sole custody of the children, with liberal visitation rights to the father, and an increased award of child support. The Supreme Court of New Jersey reviewed the decision because of the important legal questions presented.

The first issue the New Jersey Supreme Court addressed was whether courts are authorized to order the joint custody of children. The court found that New Jersey Statute 2A:34-23 provides courts with broad authorization for care, custody, education, and maintenance determinations in divorce proceedings, as the circumstances of the case shall render fit, reasonable, and just. The New Jersey Supreme Court stated that the legislative intent behind this provision was to give courts wide discretion to create creative solutions in matrimonial custody cases. The statute’s language is sufficiently broad to include the authority to order joint custody.

Moreover, statutory law, specifically N.J.S.A. 9:2-4, grants parents in child custody litigation both equal rights and equal responsibilities regarding the care, nurture, education and welfare of their children. While the statute does not explicitly authorize joint custody in plain language, it does indicate a legislative preference for custody orders that allow both parents to be fully involved in their children’s lives following a divorce. Furthermore, this approach is consistent with the common law principle that the court should, in the best interest of the child, utilize every effort to attain for the child the affection of both parents rather than one. Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. Therefore, joint custody complies with both New Jersey statutory law, and the established common law policy of this state as well.

Primarily due to the perceived inadequacies of sole custody, and the recognition of the modern trend toward shared parenting time, the concept of joint custody has become the norm in recent years. The New Jersey Supreme Court stated that sole custody tends to isolate children from the noncustodial parent, and places a heavy financial and emotional burden on the sole caretaker, who usually happens to be the mother. Additionally, because sole custody determinations are absolute, with one parent who “wins” and the other “loses,” the children more often than not, unwittingly become the subject of bitter custody contests and unnecessary post-divorce stress. Taking everything into consideration, the best interest of the child are clearly not served by sole custody.

The Supreme Court noted that joint custody attempts to solve some of the inadequacies of sole custody by supplying the child access to both parents, and granting both parents equal rights and responsibilities in regards to their children. Joint custody has two elements: legal custody and physical custody. Legal custody is the legal authority and responsibility to make major decisions regarding the child’s welfare. Under joint custody, legal custody is shared by both parents at all times. Physical custody is the logistical arrangement where the parents share time with the child and are responsible for minor day-to-day decisions, and under joint custody, may be alternated according to the needs of the parents and the children.

At the heart of the joint custody policy is the assumption that children in a unified family setting develop attachments to both parents, and the termination of either of these attachments is detrimental to the child’s best interest. Through its legal custody element, joint custody, strives to maintain these attachments by allowing both parents to remain decision-makers in their children’s lives. Furthermore, alternating physical custody allows children to share the intimate day-to-day contact necessary to strengthen a true parent-child relationship, with both parents.

Even with its many benefits, joint custody is still not without its critics. The most common objection to joint custody is the contention that such an arrangement creates instability for children, causes loyalty conflicts, makes maintaining parental authority difficult, and exacerbates the already stressful divorce situation by requiring interaction between hostile ex-spouses. Even though the afore-mentioned problems are also present in sole custody situations, some courts have used these objections to either reject or severely limit the use of joint custody.

However, in Beck, the New Jersey Supreme Court was persuaded that joint custody is generally in the best interest of the child, and therefore endorsed its uses as an alternative to sole custody. Still, the Court recognized that a joint custody arrangement would be acceptable in only a limited set of cases. The Supreme Court Justices were concerned that a presumption in favor of either sole or joint custody might create a disincentive for the detailed fact-finding required in custody cases. Fact finding is inherently important in such cases because the incredibly delicate interplay of parents and children that gives joint custody its potential value, also creates complications different from those found in sole custody arrangements. Many of those complications were illustrated in Beck.

In Beck, the parents were married in July 1963. They adopted two daughters at infancy, who were twelve and ten at the time the Supreme Court reviewed the case. Arthur was a successful commercial photographer, and Susan worked as a part-time student teacher supervisor at a local college. Arthur left the marital residence on February 14, 1976, and the girls had resided with their mother ever since, with their father visiting routinely.

In September 1977, Arthur filed a complaint for divorce based on eighteen months of separation. While he did seek liberal visitation rights, he did not seek custody of the children. Susan answered and counterclaimed for divorced on the basis of desertion. On April 12, 1979, in the course of its decision, the trial court decided, sua sponte, that both legal and physical custody would be shared by both parents. Sua sponte describes an action by a judge taken without a prior motion or request from the parties. The trial court predicated its decree with reference to the uniqueness of the case. It found both parties to be sophisticated with a positive attitude with regard to the girls. Arthur’s income was sufficient enough to support both houses, the children’s ages did not present any problem. Furthermore, the parents lived close enough to each other so that there would be no change in schools. Finally, the trial court found that because the girls were adopted, they needed the benefit, contact, and security of both parents.

Susan filed an order amending the findings and judgment of the trial court shortly thereafter. At the hearing, Susan testified and produced a child psychiatrist to also testify on her behalf. Even though Arthur decided not to testify himself, he produced three experts in support of joint custody: a school psychologist, a clinical psychologist, and psychiatric social worker. Also, the court met privately with the girls for the first time in the course of the hearing. After taking everything into consideration the appellate court determined that the award of joint custody by the trial court “could not reasonably have been reached on sufficient credible evidence,” and made its own findings in favor of Susan. The New Jersey Supreme Court found the Appellate Division’s determination to be fundamentally flawed, and held that the factual record in Beck, revealed sufficient level of credible evidence to support an order of joint custody.

The most important factor in child custody cases is the best interests of the child. This standard protects the safety, happiness, physical, mental and moral welfare of the child. The Court noted that the factors to be considered by a trial court in a child custody decision. First, the court must determine whether the children have established a relationship with both parents such that they would benefit from joint custody. It is not necessary for both parents to have been equally involved in the child rearing process to establish such a relationship. It is only necessary that the child recognize both parents as sources of security and love and wish to continue both relationships. Then the court must focus on the parent and determine if they qualify for such an arrangement. Minimally, both parents must be physically psychologically capable of fulfilling the role of a parent.

Joint custody has an additional requirement that both parents exhibit a potential for cooperation in child related matters. This does not mean that both parents need to have a friendly relationship. While such a relationship would be preferable, a joint custody arrangement requires only that the parents be willing to put aside their personal conflicts in raising the children. In Beck, the mother contended that cooperation was impossible and refused to abide by the divorce order. The Supreme Court found that the trial court’s decision was based on sufficient credible evidence, and accordingly reversed the judgment of the Appellate Division and remanded the case to be heard again, directing the trial court to consider all of the afore-mentioned factors and return a verdict in the best interest of the children. For more information on this issue, please contact my office today.