Like many other states, New Jersey statutes and case law allows family court judges great flexibility to make custody orders that serve the best interests of the children involved in family disputes. Almost any custody arrangement can be ordered so long as it is supported by the court’s finding that the action is in the child’s best interest. Now, state lawmakers are looking to overhaul this basic principle of family law and the decades of legal precedent it has created.
App reports state lawmakers have introduced two separate bills into the New Jersey Legislature. These bills would create a legal presumption that joint physical and legal custody is in the best interest of the child. A parent who wants the court to order less than equal parenting time, or order that one parent has sole authority to make legal decisions for the child, must overcome this presumption by presenting evidence that joint custody would be contrary to the child’s best interest. The text of the bill also requires that parents attempting to overcome this presumption meet a heightened evidentiary standard of “clear and convincing” evidence. This is higher than the civil standard of “a preponderance of the evidence,” and just below the criminal standard of “beyond a reasonable doubt.” These provisions would make it much more difficult for parents in New Jersey to fight for sole custody of their children.
The Pros and Cons of a Legal Presumption of Joint Custody
Like any law, the proposed bill has the potential to do both harm and good in child custody cases. The bill’s sponsors have stated the bill’s purpose is to ensure children have frequent and consistent contact with both parents. While it remains to be seen whether the proposed legal presumption would meet this goal, it is certainly a worthy aim for lawmakers. Creating a presumption also holds the potential to encourage parents to negotiate the terms of joint custody themselves. Knowing that a court will almost certainly order joint custody can reduce the number of issues which remain in dispute between parents, and reduce the number of child custody cases which must be scheduled for trial.
On the other hand, child custody law in the United States has been largely built on the idea that a child’s best interests should always prevail. For decades, courts across the country have been able to examine custody disputes on a case-by-case basis to carefully consider what is in the best interest of the children. Imposing a legal presumption of joint custody removes a court’s ability to do so effectively. This “one size fits all” solution is likely to work against the interests of many children, particularly those most vulnerable. Children who are the victims of abuse, domestic violence and other dangers will need someone to prove that awarding custody to their abuser is not in their best interest. Such a legal presumption could be highly dangerous to New Jersey’s most vulnerable children.
It remains to be seen whether these proposed bills will be adapted into effective New Jersey law. If they are, more parents may find themselves in need of legal advice to resolve custody disputes and protect the best interests of their children. A Freehold child custody attorney can help parents address custody issues which are presented by changes in New Jersey child custody law.
If you are struggling with a New Jersey child custody issue, contact the Freehold child custody attorneys at Rozin-Golinder Law LLC by calling (732) 810-0034.
Additional Resources: Major change in child custody coming to NJ?, by John and Victoria Paone, App, December 7, 2017.
More Blog Entries: At What Age Can a Child Choose Who to Live With in NJ?, September 6, 2017, New Jersey Family Law Attorney Blog