In any proceeding involving the custody of a minor child, the Court may order any type of custody arrangement in the child’s best interests.
Legal custody refers to a parent of a divorce having the right and responsibility to make important decisions regarding the child’s health, education, and general welfare and access to important information in these areas. For example, in a joint legal custody arrangement both parties have the right to access the child’s medical and academic records.
In most cases, the Court awards joint legal custody to both parents. Having both parents participate in these important decisions, and to have equal access to the child’s important records and information, is usually in the child’s best interest. Sole legal custody involves only one parent having these rights.
The Court may in certain circumstances award one parent sole custody. Under this arrangement, the custodial parent makes both the major decisions that will affect a child’s life, e.g., medical choices, education, recreational activities, or other major decisions regarding the child’s welfare, and the minor day-to-day decisions on behalf of the child.
Joint legal custody usually provides that one parent serves as the children’s primary caretaker, but both parents participate in making major decisions concerning the children’s health, safety, education and welfare.
The seminal New Jersey case on joint custody is Beck v. Beck. In that case, the New Jersey Supreme Court discussed and approved of joint custody as proper so long as certain circumstances existed. While recognizing that joint custody will foster the best interests of a child, the Court declined to establish a presumption in its favor or in favor of any particular custodial determination.
Considerations in determining whether a joint custodial arrangement is appropriate should include, but not necessarily be limited to, the following inquiries:
Whether the children have established such relationships with both parents that they would benefit from joint custody; i.e., does the child recognize both parents as sources of security and love and wish to continue both relationships;
Whether both parents are fit physically and psychologically and capable of fulfilling the role of parent;
Whether each parent is willing to accept some form of custody—although their opposition to joint custody will not preclude such an arrangement; and
Whether the parents will be able to maintain the potential for cooperation in matters of child rearing, despite their hostile feelings toward one another and whether enforcement techniques to ensure cooperation would be available or appropriate.
In addition to these factors, the determination of physical custody requires an examination of practical considerations involving financial status, proximity of respective homes, demands of employment, age and number of children, expense of duplication of facilities and furnishings. The preference of the children must also be given due weight.
The parties’ ability to communicate has been held to be an important factor insofar as making an award of joint legal custody.