People are often confused when it comes to discussing what they want in a divorce or custody dispute. Some ask for joint custody thinking that joint custody means that they will have their children half of the time. This is incorrect. There is a difference between joint custody and shared custody.
The courts in New Jersey favor joint legal custody between parents. There are several factors that go into this decision if it cannot be agreed on. Joint legal custody has nothing to do with parenting time. Parenting time concerns a sole parenting schedule for child support purposes or a shared parenting plan. While the law is clear about what constitutes shared custody in New Jersey, it is not equally applied from county to county.
Joint Legal Custody deals with the legal authority and responsibility for making major decisions regarding the welfare of the child and is theoretically shared at all times by both parents. See Beck v. Beck (1981).
The factors used to determine the custodial arrangement are addressed in Beck v. Beck. Some of the factors are:
While joint legal custody deals with the decision-making for the child, joint physical or shared custody deals with where the child actually lives and/or how often the child is with the non-custodial parent.
Shared custody is still very rare in the United States, but there is a trend in certain courts that shared custody is a good thing for children. In most cases, I totally disagree with that, but their are situations where it is actually beneficial to the children and not merely a guise for lower child support. The age of the child and the ability to maintain consistency is a critical part of a successful shared parenting arrangement. Where the parents live is also very important because if the parents live too far away, the child may get to school late and may be in the car more than in the home during wake time. In Pascale v. Pascale, the court addressed the issues of shared parenting in 1995.
Think back to when you were a child. If you are lucky, you grew up in a home where both parents loved you or, if your parents were divorced, you received unconditional love from both of them. When people come in to discuss their "wish list," I play devil's advocate, especially about parenting time and custody because, as a father, I know the most important thing in life to a real adult is their children.
"You can never be a real man if you do not spend time with your children." I think most people know where that quote is from, and regardless that it is from a movie, it is true. So I ask, how often do you see the kids now? What do you do with the kids? Do you think the kids will be OK going from home to home on a frequent basis? What is your plan? Who will do the homework? What time do you get home from work? The questions go on and on because I want to know that I am fighting for something real and not to just lower child support. I am the type of lawyer that wants to believe in my client's case, so I leave it all on the field after I tried my best (all in the court in this regard).
In conclusion, joint custody is essentially the law of the land in New Jersey. It does not mean that sole custody cannot be granted, but the majority of cases fall into the Joint Legal Category and Sole Physical Situation. And, like most family matters, the more proof you have, the more documentation you have, the better your chances are to prevail for the relief you are seeking.