Sunday, August 23, 2009

The Absence of Agreement between Parents Is Not a Valid Reason to Deny Joint Custody

Many divorced parents reject the concept of joint custody, and there are many of them who not only reject joint custody, but who also reject arrangements that are usual in sole custody cases. In Pascale v. Pascale (140 N.J. 583, 1995), the case that led to a revision of the child support guidelines in New Jersey, established that:

…many traditional custody arrangements… will include more than one night of parenting a week for the secondary caretaker of the children. 140 N.J. 611 (1995)

These parents reject even what would be considered a small variation of the traditional arrangement. Having said this, it should be said that in Beck v. Beck, the landmark joint custody case in New Jersey, the mother also rejected the idea of a joint custody arrangement, but that fact was not an obstacle to grant joint custody. To the objections to a court ordered joint custody, Dr. Clark, one of the experts used as consultants, replied that:

…the ideal joint custody arrangement would be one arrived at by agreement between parties. Nevertheless, in the absence of such an agreement, joint custody could successfully be carried out by Court decree, provided the parents put the best interest of the children first and were provided with certain “ground rules” governing the custody arrangement. 86 N.J. 492 (1981)

If both parents are responsible parents, joint custody will work, no matter if this arrangement has been ordered by court. Beck v. Beck dissipates any doubt that a court ordered joint custody could arise:

Although joint custody may be less likely to succeed if ordered by the Court than if achieved by the parent’s agreement, court-ordered joint custody is likely to be no more prone to failure than court-ordered sole custody following a divorce custody proceeding. 86 N.J. 498 (1981)

What the child will gain from a joint custody arrangement is so much, and what this child would lose in a sole custody arrangement is so much, that the Court should put all its effort to lead the divorcing parents to a joint custody arrangement, even if one of them disagrees.

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