CUSTODY AND A 50/50 PRESUMPTION
Last year, our Partner Alyssa Engleberg Nunn co-authored an article for the NJ Law Journal about the presumption of 50/50 physical custody in New Jersey. The blog below highlights important information from the article.
New Jersey statutory and case law historically has taken the approach to prioritize the child’s best interests and rights to maintain relationships with both parents. The Court must apply the factors in N.J.S.A. 9:2-4 and take into consideration applicable case law to determine whether parties shall share joint legal custody or one party shall have sole legal custody and make a determination as to the physical custody of the children.
The key factors the Court must consider are as follows:
- the parents’ ability to agree, communicate and cooperate in matters relating to the child;
- the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
- the interaction and relationship of the child with its parents and siblings;
- the history of domestic violence, if any;
- the safety of the child and the safety of either parent from physical abuse by the other parent;
- the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
- the needs of the child;
- the stability of the home environment offered;
- the quality and continuity of the child’s education;
- the fitness of the parents;
- the geographical proximity of the parents’ homes;
- the extent and quality of the time spent with the child prior to or subsequent to the separation;
- the parents’ employment responsibilities;
- and the age and number of the children.
Of late, there has been a mistaken impression that N.J.S.A. 9:2-4 stands for the proposition that parents have a presumption of equal or 50/50 physical custody. The approach remains the best interests test where the factors set forth above are applied. This could result in equal or 50/50 custody but the applicable statutory law and case law does not provide that it is a presumption.
In an unpublished Appellate Division case, S.R.K. v. F.B, No. A-3284-22, WL 3717333 (App. Div. August 8, 2024), the Court held that N.J.S.A. 9:2-4 requires judges to “begin by presuming equal parenting time to both parents”… , see W.M. v.D.G., 467 N.J. Super. 216, 229 (App. Div. 2021), [but] any of the enumerated factors may affect that calculation. Neither W.M. nor the statute created a presumption for equal parenting time. The Appellate Division relied on another Appellate Division case decided in 2021 in support of this opinion, yet neither the Appellate Division decision in 2021 nor the statute created a presumption for equal parenting time.
It is well established that parents have equal rights to their children. However, equal rights does not necessarily mean a presumption of equal parenting time.
Navigating a child custody case both during divorce and after a divorce can be difficult. If you have questions or concerns regarding custody and parenting time issues, contact the attorneys at Hagan, Weisberg & Nunn, LLC for a consultation.
To read a copy of the article that was published, CLICK HERE.