A 20/20 Look at 50/50 Custody

Years ago, courts routinely awarded mothers sole physical custody of their children in divorce proceedings. Legal and mental health experts saw 50/50 physical custody as a way to keep both parents involved in their children’s lives and avoid litigation. However, we are now left to question whether 50/50 physical custody is the panacea we thought it would be, or does it actually cause more problems than it solves? And with more states considering laws to promote equal physical custody, what does hindsight teach us about the future?

In New Jersey, as in most states, it’s rare for one parent to be granted sole physical custody of children after a divorce. For over 40 years, our laws have favored joint physical custody arrangements, most often with both parents having equal legal status, but with a parent of primary residence for the child, and generous, (although not necessarily equal) parenting time for the parent of alternate residence. Although this arrangement is typical, it is not without its problems. When parents share joint legal physical custody, disagreements about major life issues such as schooling, medical issues, and religious upbringing can result in the very thing 50/50 physical custody sought to avoid - litigation that is often contentious. When this happens, courts always look to the best interest of the child standard in deciding what is best for the children.

Now, some states and courts are examining the concept of equal physical custody. In an ideal world, the true 50/50 physical custody sounds wonderful and genuinely beneficial to both parents and children, but in practice, the arrangement can be logistically and emotionally challenging for both the parents and children, as well as legally problematic. A presumption of equal shared custody would force courts to balance the best interest of the child against those of the parents, which is contrary to both our statutory and case law.

This compelling new program will take a 20/20 look at 50/50 arrangements and will examine their pros and cons. Our panel of leading New Jersey family lawyers will share solid strategies and practical advice about how best to negotiate parenting arrangements and plans - all with an eye toward anticipating likely problems and being proactive about resolving them.

The panelists will be discussing seminal cases such as Madison v Davis, 243 N.J. Super ( 20 (Ch. Div. 2014) which primarily deals with custody but also addresses the issue of courts having the discretion to order co-parenting counseling as a mandatory requirement of joint custody “if two joint legal custodians have ongoing difficulties in meeting this very basic component (joint-custody) of their roles.” court's own obligation to protect the best interests of the child."