Divorce FAQ's

Sole Custody versus Joint Custody

1. What are the benefits of sole custody when both parents are equally fit?

Sole custody means that one spouse has residential custody of the child as well as the right to without any consultation to make all of the day-to-day and major decision for the child. The custodial parent as the right to make decisions on the child’s health, education and welfare. The other party is only entitled to visitation.

In New Jersey it is the public policy that both parents shall share the rights and responsibilities of child rearing. See, N.J.S.A. 9:2-4. Therefore, most family courts always encourage the parties to agree to a joint custody arrangement.

2. How does a family court define joint custody?

In the case of Beck v. Beck, 86 N.J. 480 (1981), the court stated that:

Joint custody attempts to solve some of the problems of sole custody by providing the child with access to both parents and granting parents equal rights and responsibilities regarding their children. Properly analyzed, joint custody is comprised of two elements – legal custody and physical custody. Under a joint custody arrangement legal custody – the legal authority and responsibility for making major decisions regarding the child’s welfare – shared at all times by both parents. Physical custody the logistical arrangement where the parents share the companionship of the child are responsible for a minor’s day-to-day decisions, may be alternated in accordance with the needs of the parties and the children. Id. at 486.

3. I have joint legal custody of our two children with my former husband. However, I am their primary caretaker. What special legal rights do I have with regard to the children by being the primary caretaker?

It is important to emphasize that a primary caretaker has many special legal rights with regard to the children even if a joint custodial arrangement is agreed to.

A. Religious Issues. In the case of Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005), the court was faced with the issue of the primary caretaker’s role to make post-divorce decisions as to the children’s religious upbringing. The Feldman court held that the primary caretaker has the sole authority to decide the religious upbringing of the children. The court further held that the secondary caretaker shall not enroll the children in training and education classes for programs in a different religion over the primary caretaker’s objection when exercising visitation rights. The secondary caretaker was only permitted to take the children to his or her religious services during his or her time.

B. Relocation Cases. In a relocation case the primary caretaker is granted a favorable position. See, Shea v. Shea, 384 N.J. Super. (Ch. Div. 2005).

C. Medical Decisions. In the case of Brzozowski v. Brzozowski, 265 N.J. Super. 141 (Ch. Div. 1993), the court granted the residential parent with the sole authority to have the child undertake non-emergency surgery.

D. Name Change Decisions. In the case of Gubernat v. Derember, 140 N.J. 120 (1995), the court held that there is a presumption that parents who exercise primary physical custody or sole legal custody should determine the name of the child.

Nonetheless, it is important to emphasize that it always makes sense to agree to a joint custody arrangement. It is not worth spending your life’s savings on a vicious custody battle to litigate over the legal niceties of sole custody versus joint custody. Money is much too tight these days to litigate over this increasingly non-consequential issue. The family courts always try to encourage that both parents should equally share the parental duties to raise the children together.

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