As divorce rates continue to climb in America, family courts across the country must often decide custody battles. Custody arrangements go from commonplace to creative. Having a child spend every other weekend at one parent's home, and the rest of the time with another parent, was routine. Now nearly 20 states are considering laws that create an automatic legal presumption of joint custody. New Jersey joins these states with the proposal of Bill A-1091 (the "Bill"), primarily sponsored by Republican Assemblyman Peterson, with broad bipartisan support.
New Jersey law has long sought to provide a child time with both parents. N.J.S.A. 9:2-4 states that the Legislature works to "assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage." The law specifically states that "it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." This has typically translated into application of the "best interest of the child" standard that focuses on protecting the "safety, happiness, physical, mental and moral welfare of the child."
The Bill, if passed, would create an automatic presumption that both parents should get equal physical custody over the child or children. The court order for joint legal and physical custody would provide for (1) a living arrangement where the child would reside an equal amount of time with each parent and (2) consultations between both parents for any major decisions related to "the child's health, education and general welfare." This presumption would be rebuttable; a parent could present evidence that joint physical custody would harm the child. If the evidence passes a "clear and convincing" standard, then the court can consider and order other types of custody arrangements.
The motivation behind the Bill lies in providing a child time with both parents. Statistics report that having both parents involved in a child's life reduce the likelihood that the child will become addicted drugs or alcohol, incarcerated or face teenage pregnancy. Parents would also be less likely to face alienation by the child as a result of a custody arrangement or nasty litigation. In an interview with FAN-PAC, Assemblyman Peterson noted that divorced or separated fathers are typically on the short end of the receiving stick when it comes to getting the same amount of time with their children as the mother does. He said:
[T]he world has changed . . . mom's out working, which she didn't do in the past, and dad might work from home, so the dynamics of having a parent at home when the kids come home from school or being able to care for them . . . we need to change and update our system of child custody to meet those changes.
Critics of these types of bills that provide a presumption of joint legal custody are concerned with potential ramifications. It could lead to the disintegration of stricter laws aimed at protecting against abusive or controlling ex-spouses or take too much of a judge's discretion away in the family courts. Some also say that the presumption is futile, since most parents who cannot agree to an equal joint custody arrangement amicably on their own, are the ones who find themselves in court.
Nonetheless the trend has been to move forward or at least to consider such legislation. In New Jersey, the Bill's supporters are specifically interested in the welfare of the child and balancing out parenting time, to reflect more modern cultural norms.