Recently, we successfully appealed a decision enforcing joint legal custody where the parties were not able to make “together” decisions without detriment to their children and on appeal, the Appellate Division reversed and remanded for sole legal custody.
Our Legislature has determined “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 . . . dissolved their marriage.” N.J.S.A. 9:2-4. Further, “it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” Ibid.
In a proceeding concerning the custody of a minor child, the judge may award joint custody, sole custody with a provision for “appropriate parenting time for the noncustodial parent,” or another arrangement that “the court may determine to be in the best interests of the child.” N.J.S.A. 9:2-4(a) to (c). When deciding which option is best for the children, the judge must consider several factors: the parents’ ability to agree, communicate and cooperate in matters relating to the child being the first identified factor. N.J.S.A. 9:2-4(c)(1).
“[I]n promoting the child’s welfare, the court should strain every effort to attain for the child the affection of both parents rather than one.” Beck v. Beck, 86 N.J. 480, 485 (1981). However, a custody decision “must foster, not hamper,” a healthy parent-child relationship. Nufrio v. Nufrio, 341 N.J. Super. 548, 550 (App. Div. 2001). Although joint legal custody may be preferred in certain cases, as it may “foster the best interests of the child,” Beck, 86 N.J. at 488, “the decision concerning the type of custody arrangement [is left] to the sound discretion of the . . . courts,” Pascale v. Pascale, 140 N.J. 583, 611 (1995).
Joint legal custody is the parties’ decision-making authority and requires the parents make any and all “major” decisions such as for example, the health, welfare and general safety, education, and religious decisions related to their child(ren) together. In joint legal custody scenarios, both parties’ rights are equal and neither has more “major” decision-making authority than the other. Ideally, they make joint decisions together and reach a decision by agreement.
But what happens if there is a stalemate? What if, because they have equal decision-making authority, no decisions ever get made because there is never an agreement on any topic? Sometimes being called upon to make “together” decisions only continues and increases the conflict between the parties and leaves them deadlocked time after time. In Nufrio, it was this inability to communicate on the part of the parties that ultimately warranted awarding sole custody to the mother in that case.
Sole legal custody is not particularly common in New Jersey, joint legal custody being the “preferred” arrangement, but when making “together” decisions just does not work, especially where requiring the parties to make joint decisions becomes detrimental to their child(ren), eventually sole legal custody becomes the only viable alternative.
To read the entire decision from the Appellate Court regarding our successful reverse and remand for sole legal custody in this case, you can navigate to the following link: https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a0068-18.pdf?c=5pe.
Appellate cases are complex and require experienced attorneys to navigate the stringent filing requirements required by the court. ALBFRM attorneys and staff understand the process and have successfully filed the appropriate pleadings with the division time and time again. Having experienced counsel at this level is critical to insuring your matter gets not only heard but also that your disputes are carefully crafted into legal arguments that comport with the law.
Julie Burick, Esq. and Kevin Falkenstein, Esq. are shareholders and partners at ALBFRM in Haddonfield, NJ. Their practice encompasses the full scope of family law matters to include appeals – both regular track and urgent matters. Strict timelines must be adhered to preserve your appeal rights – seeking legal advice immediately after your matter is ruled upon is very important.