Isn’t this shared parenting bill a one-size-fits-all approach that removes judicial discretion?

No.  The new bill modifies the language of the existing statute to make approximately equal parenting time to be in the best interests of the child; A Judge, when presented with two fit, willing, and able parents must make a custody decision in the best interests of the child(ren).   If there is any reason not to award equal parenting time for the benefit of the children, one of the litigants must make a showing in court that there is some circumstance where the Judge should deviate from that.  If one parent is successful in rebutting the presumption, then the Judge is free to make any decision regarding custody that exists in the existing language of the current NJ 9:2-4 statute.   The new bill does Nothing to remove discretion, but helps the Judiciary level set, and align its actual practices with the original intent of the legislature with respect to custody matters, thereby mitigating negative outcomes for children. 

Aren’t there times when one or both parents are not fit to share physical custody?

Yes, there are.  When those circumstances arise it’s up to the Judge, using judicial discretion, to determine who, if any, or both, litigants have successfully rebutted the presumption contained in this bill.   The Judges must still weigh in on the merits of the arguments in any custody hearing, to determine whether the burden of proof has been met to overcome the presumption of equal time for all children of the relationship.  The proposed bill does not alter or redefine the role of the Judge in matters pertaining to that determination, but gives the judge a clearer roadmap in applying the best interest’s standard.

 Isn’t True 50/50 not practical for most circumstances?

The bill provides for equal or approximately equal parenting time for the children of the marriage.  The language of the bill does not stipulate “exactly equal” because of the practicality of the circumstances of each case, there needs to be some flexibility in the language for that very reason.  This bill provides for that flexibility.

Don’t the vast majority of cases settle by consent between the parents so there is little need to change the existing standard?

If we accept this as true (because there is no such evidence of it and because litigants are forced to settle after long unnecessary and Costly batter) Yes, they do, technically 97%, of the time.  The other 3 percent of divorces go to trail whereby a Judge makes the determination of all matters, including custody, after a lengthy trial. 

However, this metric has little to do with custody determinations in practice because custody is actually determined long before the consensual divorce is signed or a trial takes place; When one parent leaves the home during the divorce, custody is awarded to one parent over the other near the time of the filing of the divorce.   It is at this early stage that a Judge makes a decision in the case on a “temporary basis”.  This defines what is called the new “status-quo” custody for the pendency of the divorce litigation.  “Temporary basis” in NJ jurisprudence means essentially permanent until changed by a Judge.  The term is often used to prevent a litigant from contesting a determination of unequal parenting time during the divorce proceeding.  

Unfortunately, these initial custody hearings often last a mere 15 minutes, where with no evidence presented, the Judge awards custody and parenting time to one party that deviates drastically from 50/50 and leaves the other parent relegated to a visitor.  This deviation is what causes much of the acrimonious conflict in family court as one litigant is left trying to overcome this disparity, and the horror stories in Family Court begin, as the children are left without access to two loving fit parents for the duration of the divorce and beyond. 

After a year or more (sometimes 2 or even 3 years) of acrimonious litigation, by the time the divorce settles by consent, the litigant without approximately equal parenting time, is so beaten down and often in dire straits financially, unable to afford to continue litigation, is informed by their lawyer that the Judge, at this point would merely preserve the current “status quo” custody and parenting time that has existed since the start of the divorce, so the litigant it told they might as well give up on trying to get more parenting time with their children.   The one parent that is left with little parenting time is left wondering what happened, and the children of the relationship are left without significant contact with one of their parents.  This sad reality of family court is what puts children in the middle of the divorce as they are used as leverage to negotiate more favorable settlement terms against the other parent.  This leaves the children vulnerable to all the negative outcomes of divorce for the rest of their lives.  This bill attempts to ameliorate this and make divorce more civil.

The new bill would require that each litigant present clear and convincing evidence to successfully rebut the presumption that approximately equal parenting time is not in the best interests of the child at this early stage.  It would also preserve the litigants right to contest an inappropriate “temporary” custody decision at a later time, and effectively eliminate “status quo” as a prejudicial factor.   It will level the scale of parenting time between the litigants. This evolution can be seen in our own experiences; in our families and communities.  It is also supported by data.  The percentage of two-parent households where both parents work full-time has risen by 50% over the past five decades, from 31% in 1970 to 46% in 2015.  While the number of families where the father works full time and mother stays home has decreased by 43%, from 46% to 26%.  This is according to the Pew Research Center analysis of Current Population Survey data.  This data clearly indicates family life is changing, and so, too, is the role mothers and fathers play at work and at home.

The primary question we would ask in return is – why would this legislation create more bad outcomes for children and families as compared to existing legislation? 

The existing standard is clear that neither parent is given preference in custody matters, why especially since no other state has such a standard should New Jersey make this change?

Despite the language of current statutes related to custody, the judicial branch has misinterpreted the legislative intent of the laws as they were originally written.   The system has created an imbalance in matters of custody where the Judge picks a winner over a loser, and creates an uncivil arena that puts children in the middle rather than setting the children aside and providing them substantially equal access to both parents. 

in 2018, the majority of states are currently considering similar bills to the language in our bill.  The tide is turning on this, momentum is with us, and hopefully, we can ensure that New Jersey takes a leadership position and becomes the model for other states to follow.

The clear and convincing evidence is too high of a standard for an abused parent to meet relative to an unfit parent?

In cases of abuse, on the contrary, it’s actually a very easy standard for anyone abused to successfully rebut.  In the age ubiquitous cell phone cameras, audio recording apps, text messages, and emails, it is quite easy to obtain evidence to meet this burden.   With this bill, it will become more difficult for a litigant to commit perjury and merely make up allegations of abuse where there is no abuse, as Judges would need to see some actual evidence rather than relying on one litigant's word against another.