Plaintiff and defendant were married on January 13, 1962 and separated on December 1, 1973. Plaintiff wife filed her complaint for divorce on June 5, 1975, alleging a cause of action based on 18 months' separation. The parties were divorced by judgment of this court on November 23, 1976.
Two children were born of the marriage, Dana, 13 years of age, and William, 11. They are in the custody of the plaintiff.
Defendant husband is now a practicing member of the Bar of this State, having successfully pursued various business ventures as a real estate broker and developer. At the present time he is attempting to develop several properties in the Livingston, New Jersey, area, and testified to possible ventures in Arizona and Pennsylvania.
Plaintiff has recently undergone an operation for cancer and is under continuing medical and psychiatric care. She is a licensed real estate saleswoman and is affiliated with a local agency, but she has not had a significant income from those efforts.
Trial of this matter consumed about three days. At the conclusion of oral testimony the court ordered counsel for the parties to submit summations as to law and fact covering equitable distribution, support and alimony, custody, counsel fees and costs. This opinion will dispose of those issues.
[The court here awarded plaintiff the marital residence and certain personal property by way of equitable distribution under N.J.S.A. 2A:34-23, applying the guidelines suggested in Rothman v. Rothman , 65 N.J. 219, 232 (1974), plaintiff to be solely responsible for the mortgage, taxes and upkeep of the home. The court also fixed the amounts of alimony and child support defendant is to pay plaintiff; he is to provide a policy insuring his life in an amount of at least $50,000, naming the children as irrevocable beneficiaries and to be maintained until the younger shall have become emancipated, as well as health and medical insurance for them, including major medical coverage, to be maintained until each is emancipated. In addition, he is to be responsible for any extraordinary medical expenses incurred by plaintiff for the treatment of her cancer.]
The issue of custody of the minor children of the marriage is seriously contested. During settlement negotiations held at a conference in chambers the court suggested that, in view of plaintiff's continuing health problems, an order of joint custody might be appropriate in this case.
Plaintiff, in her summation, requests that the court's order of joint custody, if entered, name one parent as the "primary custodian as a matter of law." Defendant "welcome[s] dual custody" in his summation.
Two questions are thus presented. Can this court order joint custody, that is, does the court have the authority to do so? If so, then in what fashion can an order of joint custody, if appropriate, best be implemented?
The question of joint custody has topical as well as legal significance, having been discussed recently in the New York Times Sunday Magazine (October 31, 1976) and being the subject of a pending suit naming the Chancery Division of
Essex County as defendant. In addition, the concept of joint custody has never been fully explored in any reported decision of our courts. The time is ripe for a full review of the legal and statutory bases for an award of custody, in general and joint custody, in particular.
The Superior Court of New Jersey has "original general jurisdiction throughout the State in all causes." N.J. Const. (1947), Art. VI, § III, par. 2. Further, the legislature has vested in this court the authority to make such order, after judgment of divorce or maintenance, "as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just * * *." N.J.S.A. 2A:34-23. Clearly, this legislative grant of authority would include the authority to order "joint," "divided" or "split" custody. Assuming, therefore, that the circumstances of the parties and the nature of the case render an award of joint custody, "fit, reasonable and just," there is no reason why such an order should not be entered.
New Jersey is in the majority of states which follow the traditional "best interests of the child" rule in custody determinations. The "best interests" doctrine was first announced by Judge (Later Justice) Brewer in Chapsky v. Wood , 26 Kan. 650 (1881), in which the Kansas Supreme Court repudiated the rule which held that the rights of parents were primary over those of third parties to custody of their children. The doctrine gained popularity after the decision in Finlay v. Finlay , 240 N.Y. 429, 148 N.E. 624 (1925), in which the New York Court of Appeals held that the Chancellor acted as parens patriae to do what is best for the interests of the child.
The "best interests" standard is the one advocated by the Family Law Section of the American Bar Association in § 402 of the Uniform Marriage and Divorce Act. That act has undergone a proposed revision, but § 402 was left unmodified. See 7 Fam. L.Q. 135 (1973).
Other standards for placement of custody have been proposed, but they have not yet had as wide acceptance as the "best interests" test has had. Goldstein et als. propose the "least detrimental available alternative." Goldstein, A. Freud and Solnit, Beyond ...