THE BERNARDS-RIDGE CONNECTION PAGE 12 FEBRUARY/MARCH 2025 theconnectionsnj.com espite it not being the law or supported by social science, many judges and even custody experts take the position that 50-50 custody should be the de facto starting point in a divorce. This ignores the ages of the children, the level of conflict, the inability to co-parent, the inability to communicate, and even any logistical hurdles that would make 50-50 parenting time impossible. The recently decided case of K.K. v. L.L., an unreported (non-precedential) New Jersey Appellate Division decision, explored this issue in detail. In this case, one parent left the state with the children and refused to return from California. The court allowed the parent to stay in California while the case was pending. It was ruled at trial that the children could stay in California, but the court did not award 50-50 custody. Instead, the parent in California was named the “Parent of Primary Residence.” The other parent appealed, but the Appellate Division affirmed the award of “Parent of Primary Residence” to the California parent. In its opinion, the Appellate court noted that New Jersey law has a touchstone public policy goal of assuring “minor children of frequent and continuing contact with both parents after the parents have separated” and preserving equal rights for parents. It reasoned, however, that state law allows for multiple methods of achieving those goals and does not require courts to award 50-50 physical custody. The public policy goal of assuring frequent and continuing contact with both parents can be accomplished in a myriad of ways. In the case of K.K. v. L.L., it was achieved with a combination of lengthy summer parenting time, other parenting time ordered throughout the year, and daily video and electronic contact between the plaintiff and the children. Here is what the court said: “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 interest 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 court clarified that the legislative intent was simply to allow both parents to have an equal right to seek custody of their children and that joint physical custody is “rare.” The takeaway from this case is that the statute does not require 50-50 parenting, just the opportunity for both parents to seek it. That does not mean that 50-50 parenting is not appropriate in many circumstances. It just means that it is not, nor should it be, automatic. Questions about custody or other family law issues? Contact Eric S. Solotoff, Co-Chair of Fox Rothschild’s Family Law Fox Rothschild’s Family Law Department, at esolotoff@foxrothschild.com or 973.994.7501; or Jessica Diamond Lia, a Partner in the firm’s Family Law Department, at jlia@foxrothschild.com or 973.992.7517. LAWYER’SVIEW What’s the Custody Starting Point? It’s Not Always 50-50 By Eric S. Solotoff and Jessica Diamond Lia The court clarified that the legislative intent was simply to allow both parents to have an equal right to seek custody of their children and that joint physical custody is “rare.” Despite it not being the law or sup Morristown | Princeton | Atlantic City Handling family law matters throughout New Jersey When It’s Your Move High-net-worth divorce is complicated. Division of assets, complex income, custody. The rules can seem tilted against you. Our attorneys have the legal know-how and national firm resources it takes to design a successful strategy.* Dedicated. Driven. Committed to helping you reach your goals. Eric Solotoff esolotoff@foxrothschild.com 973.994.7501 Jessica Diamond Lia jlia@foxrothschild.com 973.994.7517 *Results may vary depending on your particular facts and legal circumstances.
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