By: John P. Paone, Jr., Esq. and Victoria E. Paone, Esq.
Two bills were recently introduced in the Legislature, Senate Bill S3479 and Assembly Bill A5189, which would radically change how child custody is determined in New Jersey. These bills provide that in child custody cases there will be a presumption that the child will reside with each parent for equal or approximately equal periods of time. If these bills become law, the only way the presumption of this equal timesharing will be overcome is if either parent can show, with compelling and conclusive evidence, that an equal custody arrangement is harmful to the child.
Under current law there is no presumption of equal parenting time. Rather, courts presently look to what is in the child’s best interests, often focusing on who was charged with the child’s primary care before the couple separated. The recent bills which have been introduced would sidestep the current analysis regarding custody which examines which parent offers more of “a stable environment,” “the preference of the child,” “the parents’ ability to agree, communicate and cooperate in matters relating to the child” and other factors. The sponsors of the bills state that their goal is to assure that children have frequent and consistent contact and communication with both parents. Likewise, the sponsors believe that these bills will help eliminate parent alienation, which can arise when one parent has more access to a child than the other parent. Furthermore, proponents of the bills believe that divorces will move faster with child custody effectively becoming a non-issue in many cases.
Those opposing the bills argue that having a “one-size fits all” answer to child custody ignores the unique factual circumstances of each case. Legal organizations and others that oppose these bills argue that while a presumption of legal and physical custody may be administratively efficient, it does not adequately address the best interests of the children. The opposition contends that it is more beneficial to children if the overall custody determination takes into consideration the dynamics of the parents’ relationship, the extent of parental conflict, the developmental needs of the children, the living arrangements of the parties, and other factors before custody is determined. Moreover, the dissent maintains that custody cannot be evaluated so simplistically and mechanistically by relying on an imperfect legal presumption, but must be conducted based on a fact sensitive inquiry and by reviewing the totality of the circumstances.
Custody cases can be among the most controversial and emotionally trying in the practice of family law. Although the current bills are intended to level the playing field between the parents as to issues regarding time and control over their child, if adopted the bills could provoke even greater litigation unless both parties agree to an equal division of time sharing or some alternative arrangement regarding child custody.
It remains to be seen what the outcome will be before the Legislature. However, parents involved in custody disputes will want to pay close attention to the potential change in the law. Individuals who are about to go through custody litigation should consult with an attorney about how this law if enacted may affect their case.
*John P. Paone, Jr., Esq. and Victoria E. Paone, Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski & Murray, with offices in Red Bank and Woodbridge.