In New Jersey, there are two basic concepts of child custody. The more familiar concept is “physical” custody which refers to where and with whom the child will live. When parents share “joint physical” custody, the child lives with each parent for a certain amount of time during the year. A parent with whom the child spends most of their time is designated as the Parent of Primary Residence (“PPR”) or the primary caretaker. The parent with whom the child has time-sharing is designated as the Parent of Alternate Residence (“PAR”) or secondary caretaker. Generally, unless there is a concern that the parent of alternate residence will harm the child, parenting time or visitation rights will not be withheld.
The less familiar but equally important concept is “legal” custody which refers to a parent’s right to make decisions concerning their child, such as medical treatment, selection of healthcare providers, education, engaging in what might be considered hazardous activities and other significant decisions. In most cases, parents will have joint legal custody of a child and share the decision-making responsibilities. In some instances, however, the judge may award sole custody where only one parent has legal and physical custody. This is a relatively rare occurrence that is ordered only when the other parent is absent or legally unfit. A parent may be unfit if he or she has engaged in child abuse or neglect or is struggling with an addiction to alcohol or drugs. Absent such circumstances, a joint legal custodial relationship among parents is the preferred arrangement since it is likely to foster the best interests of the child.
A recent Court decision restated that “the prime criterion for establishing a joint legal custodial relationship between divorced or separated parents centers on the ability of those parents to agree, communicate, and cooperate in matters relating to the health, safety, and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other. The ability of parents to put aside their personal differences and work together for the best interests of their child is the true measure of a healthy parent-child relationship.”
Once the parties have agreed or a Court has ruled that they will have joint legal custody of their child, the issue becomes implementing and exercising such a joint custodial arrangement. Joint legal custody requires the parents to discuss and consult with each other regarding “major” decisions affecting the health, education and welfare of the child. Sometimes there is often a conflict as to what is a “major” decision versus a “day-to-day” decision. Such “day-to-day” decisions are generally determined by the primary custodian.
Major decisions can be as varied as the children they affect. The most common major decisions parents face are medical or health related issues of the child, choice or change of religious affiliation, choosing a summer camp, international travel, interstate travel for time-sharing when one parent has relocated, the appropriateness or cost of extracurricular activities, choice of private school and/or college, course of study or selection of major course of study at college, etc.
Unfortunately, the acrimony the parties displayed during the marriage does not always subside after the matter is resolved. The parents often continue the battle between themselves when discussing issues affecting their child. When discussion and compromise does not result in a resolution by the parties, our Courts are called upon to make decisions regarding these major issues regarding the child. This is seldom the best remedy.