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Sole Custody: Does It Still Exist?
(provided by Ivette Alvarez, Esq. of Einhorn Harris, Ascher, Barbarito & Frost)

When was the last time that absent gross misconduct, abandonment or imprisonment by the other party sole custody of the minor children was awarded to your client? With the decreasing number of cases that are tried to conclusion in the family part, sole custody of the children in one or the other parent is almost unheard of. Has sole custody truly been done away with in all but the most extreme cases? Or, has it perhaps been replaced by presumptions and other favored status given to the primary caretaker sometimes referred to as the custodial parent or residential parent?

The New Jersey Alimony Statute, N.J.S.A. 2A:34-23, provides the court wide latitude to fashion a remedy regarding custody of minor children. Mayer v Mayer, 150 N.J. Super 556 (Ch. Div. 1977). N.J.S.A. 2A:34-23 provides that "the court may make such order regarding the care, custody, education and maintenance of the children as under the circumstances of the case shall be fit, reasonable and just." Further, N.J.S.A. 9:2-4 states in part that:

In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order, which may include:
  1. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include: (1) provisions for residential arrangements so that the child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parent and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare;

  2. Sole custody to one parent with appropriate parenting time. The term "visitation" was substituted by "parenting time" by the Supreme Court in 1999 Rule revisions to avoid the negative connotations of the former and enhance the role of the non-custodial parent. (2006 Supplement, New Jersey Family Law, Alan Grosman) for the non-custodial parent; or

  3. Any other custody arrangement as the court may determine to be in the best interest of the child.
    In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with the parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geological proximity of the parents' homes; the extent and quality of time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child. The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child's interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties in the litigation;

  4. The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child;

  5. In any case in which the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody;

  6. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents;

Notwithstanding what appears to be an unrestricted ability to fashion custodial arrangements in the best interest of the child, in the preamble to this statute, the Legislature is clear as to the public policy goals that guide the court's award. It states, "The Legislature finds and declares 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 separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." Id. N.J.S.A. 9:2-4 (Emphasis added)

So, what is sole custody, and what are the benefits of sole custody when both parents are essentially equally fit? While no case clearly articulates what sole custody is, as distilled from the cases that speak about what joint custody is, sole custody means that one party has residential custody of the child as well as the right, without consultation, to make the day-to-day and the major decisions concerning the child's health, education and welfare. The other party to the sole custody arrangement is entitled to visitation. Skoloff & Cutler, II New Jersey Family Law Practice, (13th ed. 2008), Sec. 4.1, at p. 4:12. It is not surprising therefore, that sole custody -- the antithesis of the goals of shared "rights and responsibilities" -- the public policy of our State, would not be favored.

It seems that today joint custody is favored. But what does joint custody mean? As the court in Boardman v Boardman, 314 N.J. Super. 340, 348 (App. Div. 1998) articulated, "[j]oint custody can take many forms. The elements of joint custody began to be defined with Beck v Beck, 86 N.J. 480 (1981).

The court stated:
Joint custody attempts to solve some of the problems of sole custody by providing the child with access to both parents and granting parents equal rights and responsibilities regarding their children. Properly analyzed, joint custody is comprised of two elements-legal custody and physical custody. Under a joint custody arrangement legal custody-the legal authority and responsibility for making "major" decisions regarding the child's welfare-is shared at all times by both parents. Physical custody, the logistical arrangement whereby the parents share the companionship of the child and are responsible for "minor" day-to-day decisions, may alternate in accordance with the needs of the parties and the children.
Id. at 486, 487.

The Beck court distinguished joint custody from "alternating" custody, which it described as an arrangement where the parties alternate both physical and legal custody and from "split custody," which it described as when there are two or more children and each party is awarded sole custody of one or more of the children. Although this case has often been credited for creating a presumption in favor of joint custody, in Beck, the court stated that despite its belief "that joint custody will be the preferred disposition in some matrimonial actions, we decline to establish a presumption in its favor or in favor of any particular custody determination." Ironic, since the grant of joint custody was made by the trial court sua suponte as neither litigant had requested it. Id. at 484. The Beck court also stated and that "such an arrangement will prove acceptable in only a limited class of cases." Id. at 488.

In the landmark decision of Pascale v Pascale, 140 N.J. 583 (1995), the court sought to further clarify the terms used in this area of the law. In that case the parenting order issued upon the parties divorce granted the parties joint custody of the children and designated the mother as the "residential custodial parent." The father who had a schedule of visitation, which he termed non-traditional, sought to be exempted from the application of the Child Support Guidelines. The Pascale court discarded the term "joint custody" and recommended that in the future the parties differentiate between "legal custody" and "physical custody" in defining the relief they are seeking. Citing Beck, the court at 595, 596 stated "[t]herefore, we reaffirm that properly analyzed, joint custody is comprised of two elements-legal custody and physical custody," and find it important to break down the term "joint custody" into legal and physical in reviewing the court's determination of child support. The Pascale court further stated that joint legal custody with "physical custody" given to only one parent, the "primary caretaker- the custodial parent" and "secondary caretaker-the non-custodial parent" is much more common in New Jersey, while joint physical custody is as rare in New Jersey as in other states. Id. at 597, 598.

Of importance to the decision-making ability of the primary caretaker over the secondary caretaker is the Pascale court recognition that:
In producing a stable financial and legal foundation post-divorce for children of divorce, courts should allow the primary care taker to provide the children with the basic needs and the secondary caretaker to maintain a close relationship with the children. For the success of that structure, it makes sense that the person who has assumed the role of primary caretaker not be involved in a daily relationship with the secondary caretaker about the financial needs of the children. Rather when joint custody is merely legal in nature, the primary caretaker should be accorded autonomy over the day-to-day structure of the new family in which he or she is the primary caretaker. That structure is established by the courts not to leave out the secondary caretaker, but to assure that the child is as undisturbed as possible in the implementation of the child's parents' decision to make one parent the child's primary caretaker. The primary caretaker who makes those day-to-day decisions needs autonomy over the financial resources drawn from both parents' salaries to effectuate those decisions without endless discussion with the secondary caretaker.
Id. at 599, 600.

The Pascale court went even further. It approvingly cited the reasoning in Brzozowski v Brzozowski, 265 N.J. Super. 141 (Ch. Div. 1993), a case which granted the residential parent alone the authority to have the child undertake non-emergency surgery. The Pascale court referred to this grant of authority to the residential parent as a "child centered view" and stated:
One court recently reasoned: [R]egardless of the words used to describe the custodial relationship, the residential custodial parent has been afforded somewhat more authority to decide issues in the event of disagreement. The rationale for this, as expressed in Boerger v. Boerger, 26 N.J. Super. 90, 104, 97 A.2d 419 (Ch. Div. 1953) is that the parent with whom the child resides most of the time probably knows that child best, because of the day-to-day exposure to the child and to the child's problems.
It is fully consistent with the reasonable expectations of the parties, that the parent given the responsibility for the day-to-day rearing of the children should be able to discharge that responsibility (subject, as always, to notification to, and dialogue with, the joint custodial parent).
The contrary holding will produce applications, emergent and otherwise, to the court whenever the parties cannot reach agreement.
We agree with the Brzozowski court. To provide for the children of divorce, finalize living structures, and relieve stress from the child's life and the lives of both parents, grants of authority to the primary caretaker are necessary.
Id at 606.

Depending on your point of view, what other grants of authority to the primary caretaker or erosions of authority to the secondary caretaker are there? In Gubernat v Deremer, 140 N.J. 120 (1995) a father who had originally denied paternity but was confirmed as the natural father of the child after tests, sought joint custody and for the child's surname to be changed to his. The trial court granted his application and the Appellate Division affirmed. Granting certification, the Supreme Court reversed finding that there is a presumption that parents who exercise primary physical custody or sole legal custody should determine the name of the child.

The Gubernat court stated:
The presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interest of the child. Accordingly we adopt a strong presumption in favor of the surname chosen by the custodial parent. Although we accord the presumption substantial weight, it is not irrefutable.
Id. at 144, 145.

Most tragically, following the court's decision, Mr. Gubernat killed himself and the child. See Alan M. Grosman, Parental Disputes Over the Surname of a Child, N.J. Law. Mag. (May 1997).

Another area where the primary caretaker enjoys a favorable position is that of being able to make the decisions regarding the religious upbringing of the child. In Feldman v. Feldman, 378 N.J. Super. 83 (App.Div. 2005) the court was faced with the issue of "the primary caretaker's authority post-divorce to decide the religious upbringing of the children and the secondary caretaker's limitation upon religious training and education when exercising visitation which includes overnights stays where the parties have joint legal custody" Id. at 85, 86. While being sensitive to the subject matter and recognizing that the "judiciary should be loathe to embark" into religious matters, the Feldman court held that "the primary caretaker has the sole authority to decide the religious upbringing of the children and the secondary caretaker shall not enroll the children in training and education classes for programs in a different religion over the primary caretaker's objection when exercising visitation rights." Id. at 85, 86. The secondary caretaker however is permitted to take the children to his/her religious services during his/her time.

A preferred status for the custodial parent is found in the relocation area. The seminal case, Baures v Lewis, 167 N.J. 91 (2001) provides that:
Where the parties are exercising true, shared joint custody, the court is required to undertake the more stringent "best interest" analysis applicable to a change of custody application. Conversely, where the party seeking removal already exercises primary custody, his or her burden is to establish, (1) a good faith reason for the move and (2) that the move is not inimical to the child's interest.
Id. at 118.

The case of Shea v. Shea, 384 N.J. Super. 266 (Ch. Div. 2005) amply recognizes the favorable position of the primary custodial parent in a relocation case under the Baures standard. In Shea, the plaintiff, who had only three months before settling the parties' matrimonial action by giving defendant parent of primary residence status, opposed the application of the lesser standard afforded the primary custodian in a relocation application under Baures as "a deceptive manipulation."

The court stated:
Defendant is entitled to a plenary hearing on the issue of relocating to the State of North Carolina. Likewise, plaintiff has the right to establish that the Baures removal procedures were manipulated by defendant in filing her removal action shortly after entry of the Final Judgment, when the issues could have been joined in the divorce litigation. If proven fundamental fairness would require that plaintiff be restored to the position he was at in terms of litigating custody, at the time that the final judgment was entered. Under such circumstances, the court would utilize the best interest of the child, custody standard, in lieu of the Baures criteria. Id. at 273, 274.

So what decisions are left for the secondary caretaker to equally share with the primary caretaker when the primary caretaker's decision is considered to be made "in the best interest of the child"? It appears that is where the secondary caretaker would be financially impacted by the decision of the primary caretaker. So that in Gac v. Gac, 186 N.J. 535 (2005) where the parties had joint legal custody but no visitation was ordered between the children and the non-custodial parent because of the children's estrangement, the custodial parent was denied any reimbursement for the daughter's college costs. In denying the non-custodial parents' contribution, the court focused on the lack of notification and consultation by the custodial parent and the estranged daughter with the other parent, the Court stated:
The relationship between the non-custodial parent and the child is not required for the custodial parent or the child to ask the non-custodial parent for financial assistance to defray college expenses even though Alyssa did not have a relationship with her father, plaintiff nonetheless received child support for Justin and Alyssa during this entire period and could have sought additional support for Alyssa's education. Also, if Alyssa wanted financial assistance from her father, she could have made the request before she incurred her college expenses. Neither plaintiff nor Alyssa made such a request until after defendant sought to terminate child support, and Alyssa had graduated from college. The failure of both plaintiff and Alyssa to request that defendant assist in paying Alyssa's educational expenses at a time that would have enabled defendant to participate in Alyssa's educational decision as well as to plan for his own financial future weighs heavily against ordering him to contribute to her educational expenses after her education was completed.
Id. at 546 (Emphasis supplied)

Would the decision of the primary caretaker hold over the objections of the secondary caretaker if more than just cost was the objection so long as the decision was not detrimental to the child? It would appear so if the primary caretaker is presumed to "act in the best interest of the child."

How then does this square with the State's public policy that "it is in the public interest to encourage parents to share the rights and responsibilities of child rearing."

We all have had cases in which the parties are locked in such conflict that even though they are both generally fit parents, litigation never ends. Where applications to the court over even the most mundane parenting decisions continue long after the parties are divorced. This conflict can be the result of different parenting styles or personality disorders that do not substantially interfere with the parenting abilities of the parties. We now even have a name for these cases and a way of handling them. We call them "high conflict" cases and can seek the appointment of a parent coordinator. While the parenting coordinator may reduce the number of applications to an overburdened court, even if successful, this alternative only defers the decision making adding another layer of outside involvement, cost and stress to the family.

As our society becomes more plural, that is, "that no shared ideal dictates or defines proper work roles, proper family structure, or proper family values," (Jonathan W. Gould and David A. Martindale, The Art and Science of Child Custody Evaluations, 33 (The Guilford Press 2007) citing Elster, 1987; Scott, 1992.), there is a high probability that the number of high conflict cases will increase. So what is the benefit of having a sole custodian make all the decisions or having the primary custodian presumed to be making decisions in the best interest of the child and thus have the final say? As the court in Pascale recognized, the unfortunate victims of the decision-making conflict are the children for whom even day-to-day events are fraught with anxiety and dread. Having one parent - the parent entrusted with the children during the majority of the time, the parent who knows the children best - given the final say to make the decisions when no agreement is possible, has the salutary effect of ending litigation and reducing the court's intrusion into the family life. And after all, isn't that in the best interest of the children?

Information provided by:
Ivette Alvarez, Esq. located at,

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