When I began practicing New Jersey divorce law in 1987, custody cases often followed a predictable pattern:
The mother usually had primary physical custody. The parents might share joint legal custody. The father commonly had parenting time every other weekend, perhaps with a weeknight dinner.
We did not even call it “parenting time” as often as we do today. We called it “visitation.”
A lot has changed.
Fathers Are No Longer Treated Like Visitors
Today, I regularly represent fathers seeking substantial parenting time, equal parenting time or primary physical custody.
Many fathers are deeply involved in the daily work of parenting. They take children to school, attend medical appointments, help with homework, coach teams and manage bedtime routines.
Work has changed too. Flexible schedules and remote work have made it possible for many parents to take on responsibilities that previous generations divided more traditionally.
At the same time, more mothers have demanding careers and may be the family’s primary income earner.
The old assumption that mothers raise the children while fathers provide financially no longer reflects many New Jersey families.
The law should not begin with that assumption either.
Mothers and Fathers Have Equal Custody Rights
New Jersey law says that the rights of both parents must be considered when custody is decided.
The court’s primary concern is not whether the parent is the mother or father. It is the child’s best interests.
Judges consider factors including:
- Each parent’s relationship with the child
- The parents’ ability to communicate and cooperate
- Each parent’s willingness to support the child’s relationship with the other
- The child’s needs
- The stability of each home
- Each parent’s employment responsibilities
- The quality and continuity of the child’s education
- Any history of domestic violence
- The safety of the child and either parent
- The extent and quality of the time each parent spent with the child before and after the separation
The court may also consider a sufficiently mature child’s preference. Gender is not supposed to decide the case.
Legal Custody and Physical Custody Are Different
Custody has two separate parts.
Legal custody determines who participates in major decisions involving education, healthcare and the child’s general welfare.
Physical custody determines where the child lives and how parenting time is divided.
Parents may share joint legal custody without having equal physical custody. They may also agree to, or receive, a schedule approaching 50/50 when it serves the child’s needs.
Is 50/50 Custody Automatic in New Jersey?
No. New Jersey does not currently have an automatic presumption that every child should spend exactly half of their time with each parent.
Proposed legislation has repeatedly sought to create a presumption of joint legal custody and equal or approximately equal physical custody. But proposed legislation is not current law unless it is passed and enacted.
Under the law in effect today, the judge must evaluate the individual child and family.
A 50/50 schedule may work very well when:
- Both parents are capable and actively involved
- The homes are reasonably close
- The schedule works with school and activities
- The parents can communicate effectively
- The arrangement provides stability for the child
It may not work when there are safety concerns, domestic violence, extreme parental conflict, impractical travel or other circumstances affecting the child.
Equal time should not be awarded simply because it appears mathematically fair to the parents. The arrangement must work for the child.
Your History as a Parent Matters
If you are seeking substantial parenting time, what you actually did before the divorce may become important. Who attended school meetings? Who scheduled medical appointments? Who helped with homework? Who knew the teachers, doctors, friends and daily routines?
You do not become an involved parent by asking for 50/50 custody after the divorce complaint is filed. The strongest position usually comes from being consistently involved in your child’s life before, during and after the separation.
The Bottom Line
New Jersey child custody has changed significantly since I began practicing law in 1987. The old “mother gets custody and father gets visitation” model is no longer the automatic expectation.
Today, mothers and fathers may both seek meaningful physical custody and an equal voice in major decisions. But there is no guaranteed schedule.
Every custody decision must be based on the child’s best interests and the particular facts of the family.
If custody and parenting time may become issues in your divorce, my free Divorce Smarter Course can help you understand your rights and avoid mistakes before temporary arrangements become difficult to change.
Until next time.
Steve