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A Legal presumption of exactly equal shared physical custody; even when the parties disagree?

Society has advanced tremendously so that both mothers and fathers can be caretakers and financially contributing to the children. Courts in New Jersey also really do consider both mothers and fathers equally capable and entitled to have physical custody of children. Legal custody, i.e. decisions regarding health, education, and welfare of the children, is almost always joint from the very beginning of a matter. There is little favoritism towards women in the courts these days. Each case really becomes an analysis of the actual facts of the parties including history, logistics, and the best interest of the children.

There are many states currently considering a presumption of exactly equal physical custody of children after a divorce.
What are the benefits? What are the detriments?

Two homes to move back and forth, with often two different sets of rules and parenting styles. This might be stressful to the kids.
Each parent has an “equal work load.” The child does not feel worried about spending time with one parent over the other surprisingly even if there is conflict. This might cause less stress to the kids.

There are studies that show the move back and forth sometimes lowers the child’s emotional stability if he or she cannot adapt to the regular changes.

If the parents themselves opt for shared parenting, it indicates cooperative child centered conduct and values, which likely will result in a child having stability and doing well.

There are few studies that exist discussing the long term impact on children of 50/50 custody. Also, this 50/50 legislation ignores the reality of unequal parenting roles prior to the divorce. If both parents wanted a close and cooperative relationship with the kids, they would have exercised it during the marriage and voluntarily transitioned into this in the event of divorce. Should it be forced on parents and kids if it was never the situation before?

The presumption of 50/50 physical custody is a “cookie cutter standard.” Kids and families are definitely not all the same. Successful shared parenting arrangements occur with the following factors:

  • Respect and appreciation for the other parent notwithstanding the divorce
  • Objectivity regarding the children
  • Sensitivity towards the children and other parent problem solving by both parents

Failed shared parenting arrangements occur with the following factors:

  • Constant conflict and anger with the other parent
  • History of domestic violence or substance abuse
  • Viewing the other parent as bad
  • Insensitivity to children or other parent

Moms and Dads do have equal rights in New Jersey but every Mom, Dad, and child is not the same. A uniform rule, although useful in some circumstances, may be very harmful in others.  As you can clearly see, there are many arguments for a presumption of 50/50, and many arguments against it.

It is important always to consider and be sensitive to all the unique facts of a particular case and make a fair and reasonable conclusion for all parties involved.

Tanya Helfand is a Certified Matrimonial lawyer practicing for 25 years.  We provide a half hour free consultation.  Understanding your rights and responsibilities through a divorce or custody matter is extremely important.
Please call the office to come in for an appointment to discuss your matter.

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