Splitting the Baby Never Works: So, When did New Jersey Adopt a 50/50 Physical Custody Presumption?

By: Matheu D. Nunn, Linda Torosian, Alyssa DeFuria, and Alyssa Engleberg Nunn
Originally published in the NJ Law Journal on August 27, 2024

Over the past few years, we have heard from several attorneys that some Family Part Judges are under the mistaken impression that N.J.S.A. 9:2-4 stands for the proposition that, as a starting point in any parenting time dispute, there is a presumption of “equal” (50/50) physical custody. That mistaken approach views the “best interests” factors as the means to diverge from “presumptive” equal physical custody. In addition, there are unpublished Appellate Division decisions that can be interpreted in support of that proposition of law. Although this interpretation may lead to quicker resolutions of custody disputes because litigants (and attorneys) determine that the resources are insufficient to establish the requisite proofs to depart from the presumption, make no mistake: New Jersey law does not presently have a presumption of 50/50 physical custody.

To fully understand the current state of our law and precedent, it is necessary to analyze some relevant history. In 1906, the Court of Errors and Appeals held that “[i]n the absence of misconduct by the mother, it is customary to award to her the custody of a child of tender years.” Dixon v. Dixon, 71 N.J. Eq. 281 (E. & A. 1906). Although the “tender years” doctrine continued for many decades, in 1943, the Court of Errors and Appeals held that “it is well settled that in such cases the best interest of the children is the paramount consideration of the court, not the contentions of the parents.” McLaughlin v. McLaughlin, 133 N.J. Eq. 72, 74–75 (E & A 1943). At that time, the then-existing version of 9:2-4 provided:

the rights of both parents, in the absence of misconduct, shall be held to be equal, and they shall be equally charged with their care, nurture, education and welfare, and the happiness and welfare of the children shall determine the custody or possession. The court may make the necessary orders and decrees from time to time in relation to such custody or possession, but the father, as such, shall not have preference over the mother as to the award of custody of such minor child if the best interests of the child otherwise may be protected . . . .

The statute included the words “equal” and “equally charged” as well as language affirmatively stating that fathers were not entitled to a presumption over mothers.

In Armour v. Armour, 135 N.J. Eq. 104, 109–10 (E & A 1944), the court remanded the case to the lower court with instructions that the record be searched “for evidence that Mrs. Armour’s habits, practices, instruction or example[,]” i.e., her collection of nude pictures, nude paintings, and “several books on sex,” had an influence on the children tending to corrupt their morals. The court further held that:

[i]t is well settled, therefore, that a court of equity may interfere on behalf of infants, and remove them from the custody and control of their father or mother, whenever the habits, practices, instruction, or example of the parent, exerting a personal influence on the infants, tend to corrupt their morals and undermine their principles.

Id. at 109-110 (citation omitted). In 1948, slight amendments were made to N.J.S.A. 9:2-4. Nevertheless, the words “equal” and “equally charged” remained in the statute.

Thereafter, in 1949, in Turney v. Nooney, 5 N.J. Super. 392, 397 (App. Div. 1949), the court held that “[o]ur Courts have often expressed the view that neither the father nor the mother has the greater right to the custody of their child and that, in a contest between them, the happiness and welfare of the child is the determining factor.” Citing Seitz v. Seitz, 1 N.J. Super. 234 (App. Div. 1949). The Turney court further approved of a holding in Bierck v. Bierck, 123 A. 537, 538 (N.J. Ch. 1923), not officially reported, that “that the greatest benefit a court can bestow upon children is not so much to be found in determining which parent shall enjoy their physical custody as it is in insuring that the children shall not only retain the love of both parents, but shall be at all times and constantly deeply imbued with love and respect for both parents.” Notwithstanding the principles discussed in Turney and Seitz, as well as the use of the word “equal” in N.J.S.A. 9:2-4, courts continued to subscribe to the notion that “in the absence of misconduct by the mother, it is customary to award to her the custody of a child of tender years.” Grove v. Grove, 21 N.J. Super. 447, 454 (App. Div. 1952). The tender years doctrine remained consistent into the 1960s and 1970s. DiBiano v. DiBiano, 105 N.J. Super. 415, 418 (App. Div. 1969). Thereafter, in 1974, the Legislature amended N.J.S.A. 9:2-4, adding “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to his wishes in making an award of custody or modification thereof.” In all other regards, the statute remained the same.

In 1981, the Supreme Court decided Beck v. Beck, 86 N.J. 480 (1981). The Court acknowledged the language in 9:2-4 regarding “equal” rights to custody, concluding that “[a]lthough not an explicit authorization of joint custody, this clearly related statute indicates a legislative preference for custody decrees that allow both parents full and genuine involvement in the lives of their children following a divorce.” Id. at 485. The Court’s decision analyzed other states’ Opinions regarding “joint” custody. The Court concluded that “because . . . joint custody is likely to foster the best interests of the child in the proper case, we endorse its use as an alternative to sole custody in matrimonial actions. We recognize, however, that such an arrangement will prove acceptable in only a limited class of cases . . . . But despite our belief that joint custody will be the preferred disposition in some matrimonial actions, we decline to establish a presumption in its favor or in favor of any particular custody determination.” Id. at 488 (emphasis added). The Court further emphasized the “concern is that a presumption of this sort might serve as a disincentive for the meticulous fact-finding required in custody cases.” Ibid. Beck has never been reversed.

In 1990, the Legislature substantially revised N.J.S.A. 9:2-4 to a form in which it substantially exists today. It maintained the use of “equal rights” of both parents, and added “joint custody,” “sole custody”, as well as the “best interests” factors. But no evidence exists in the legislative history that these amendments were designed to reverse Beck. To the contrary, consistent with Beck, the amended statute highlighted various residential arrangements that may be awarded by the Court, with emphasis on the needs and best interests of the child to be considered before issuing any decision in that regard.

Fast forward to the present day. In a recent unpublished Appellate Division case, the Panel held that N.J.S.A. 9:2-4 requires family courts to “begin by presuming equal parenting time to both parents . . . [but] any of the enumerated factors may affect that calculation.” (Emphasis added). The Panel cited to W.M. v. D.G., 467 N.J. Super. 216, 229 (App. Div. 2021), in support of this proposition of law. W.M. cited N.J.S.A. 9:2-4, recognizing “[b]oth parents have an equal right to custody of their child” in reiterating the distinction between a legal parent and third parties. Ibid. We believe that the citation to, and reliance on, W.M., to create a presumption for equal parenting time, is misplaced—and may confuse practitioners.

To be sure, there is a presumption that parents have equal rights to their children, and superior rights to third-parties. However, the Legislature’s use of the word “equal” in N.J.S.A. 9:2-4 is not—and never has been—tied to a particular physical custody schedule. In fact, directly after the statute’s use of “the rights of both parents shall be equal” the statute states that “the court shall enter an order which may include” “[j]oint custody” . . . “[s]ole custody”; or “[a]ny other custody arrangement . . . .” N.J.S.A. 9:2-4. This language does not include a presumption in favor of any particular form of custody. If there remains any doubt, consider that both the New Jersey Senate and Assembly are considering bills (S163 and A2521) that would amend 9:2-4 as follows:

The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and 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. The court shall presume that an award of joint legal and physical custody is in the best interests of the child.

In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and there shall be a rebuttable presumption of joint legal custody and equal or approximately equal physical custody. [the] The court shall enter an order for joint legal and physical custody of a minor child to both parents which shall include: (1) provisions for residential arrangements so that a child shall reside an equal or approximately equal amount of time with each parent in accordance with the needs of the child and the parents; and (2) provisions for consultation between the parents in making major decisions regarding the child’s health, education, and general welfare.

To rebut the presumption of equal or approximately equal physical custody, a parent shall bear the burden of proof and must provide clear and convincing evidence that joint physical custody is harmful to the child. Findings of fact shall be placed on the record.

In the forty-four years since Beck, neither the Legislature nor Supreme Court disavowed the following from Beck: “despite our belief that joint custody will be the preferred disposition in some matrimonial actions, we decline to establish a presumption in its favor or in favor of any particular custody determination.” 86 N.J. at 488. Stated differently, custody remains an issue to be decided on a “blank slate” with consideration of the best interests factors without any presumption in favor of either parent—or any form of custody.