As I have blogged here before, despite it not being the law and not really supported by the social science, many judges and even many custody experts have taken the position that 50-50 custody should be the de facto starting point. Bear in mind that this knee jerk reaction ignores the ages of the children, ignores the level of conflict, ignores the inability to co-parent, ignores the inability to communicate, and even ignores the logistics making 50-50 parenting time impossible.

In the case of K.K. v. L.L. an unreported (non-precedential) Appellate Division decision released on November 18, 2024, the court pointed out that this just isn’t the case. Moreover, if it were the case, there wouldn’t be any need to review the statutory factors.

Now this case in interesting for another reason, that is, one of the kids left the state with the children, refusing to return from California, and was permitted to stay there while the case was pending. Ultimately, at trial, the children were allowed to stay in California (and I may blog on this aspect of the case too at some point in the near future), but the court did not award 50-50, but rather, named the parent that kept the children in California the Parent of Primary Residence.

The parent that was awarded less than 50% of the time appealed but the Appellate Division affirmed the award of Parent of Primary Residence to the other parent.

In rejecting the Appellant’s argument that a 50-50 schedule should have been implement, the Appellate Division specifically “parted ways” with his claim of error and thus, interpretation of the statute as he claimed the decision for less than 50-50 “… violated public policy, which promises children “frequent and continuing contact with both parents . . . .”

The Court’s analysis started with the touchstone public policy as follows:

N.J.S.A. 9:2-4 states it is our “public policy . . . to assure minor children of frequent and continuing contact with both parents after the parents have separated . . . 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.” The statute further provides “the rights of both parents shall be equal[,]” ibid., and grants the court authority to assure those rights by means of awarding joint, sole, or “any other” legal and physical custody arrangement that is in the child’s best
interests, N.J.S.A. 9:2-4(a), (b), and (c).

Again, if it is supposed to automatically be 50-50, why does the statute allow for multiple types of arrangements?

The Court then answers that very question, holding:

N.J.S.A. 9:2-4’s reference to “frequent and continuing contact with both parents” and that both parents’ rights are equal does not mean that courts must award fifty-fifty physical custody. If this were the case, there would be no need for the legislative mandate to balance the best interests factors or for the Family Part’s ability to award joint, sole, or any other form of physical custody pursuant to N.J.S.A. 9:2-4(a), (b), and (c).

The mandate of frequent and continuing contact with both parents can be accomplished in myriad ways without the necessity of fifty-fifty custody. Here, this was achieved by the lengthy summer parenting time the trial judge granted plaintiff, in addition to other parenting time order throughout the year, and the daily video and electronic contact between plaintiff and the children.

The language in the statute regarding the equality of each parent’s rights does not mean that courts must award fifty-fifty custody. The statute is structured as follows:

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:

a. 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 a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child’s health, education and general welfare;

b. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or

c. Any other custody arrangement as the court may determine to be in the best interests of the child.

The went on to clarify that the Legislative intent was to simply allow both parents to have an equal right to seek custody of their children – not automatically get 50-50. The Court went on to note that “Joint physical custody is “rare.”

The takeaway from this case, particularly if you are opposing the knee-jerk 50-50 parenting, is that the statute simply does not require 50-50 – just the opportunity to seek it.

That does not mean that it is not appropriate in many circumstances – just that it is not nor should be an automatic.

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    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys. Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.