On certification to the Superior Court, Appellate Division, whose opinion is reported at 173 N.J. Super. 33 (1980).
For reversal and remandment -- Chief Justice Wilentz, and Justices Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- Justice Sullivan. The opinion of the Court was delivered by Clifford, J. Sullivan, J., dissenting.
[86 NJ Page 484] The parties to this matrimonial action have been granted joint legal and physical custody of their two adopted female children. Although neither party requested joint custody, the trial court nevertheless found such an arrangement to be in the best interests of the children.*fn1 On appeal by defendant-wife, the Appellate Division found in her favor, reversing and remanding the joint custody decree with directions to award sole custody to her as the children's mother and liberal visitation rights to their father, and to make an appropriate upward adjustment of child support. Beck v. Beck, 173 N.J. Super. 33 (1980). We granted
certification 84 N.J. 451 (1980), to review that determination because of the novel and important questions presented.
The initial issue is whether courts are authorized to decree the joint custody of children. The pertinent statute provides courts with broad authorization for custody determinations in divorce proceedings:
This provision evinces a legislative intent to grant courts wide latitude to fashion creative remedies in matrimonial custody cases. Cf. Clemens v. Clemens, 20 N.J. Super. 383, 389-90 (App.Div.1952) (Superior Court also has inherent jurisdiction over custody matters as successor to former Court of Chancery). The language of the statute is sufficiently broad to include the authority to decree joint custody. See Mayer v. Mayer, 150 N.J. Super. 556, 561 (Ch.Div.1977).
Moreover, parents involved in custody controversies have by statute been granted both equal rights and equal responsibilities regarding the care, nurture, education and welfare of their children. See N.J.S.A. 9:2-4. Although not an explicit authorization of joint custody, this clearly related statute indicates a legislative preference for custody decrees that allow both parents full and genuine involvement in the lives of their children following a divorce. This approach is consonant with the common law policy that "in promoting the child's welfare, the court should strain every effort to attain for the child the affection of both parents rather than one." Turney v. Nooney, 5 N.J. Super. 392, 397 (App.Div.1959). See also Clemens, supra, 20 N.J. Super. at 391 (N.J.S.A. 9:2-4 is merely declaratory of pre-existing common law rule). Hence, joint custody comports as well with the established policy of this state.
The use by the courts of custodial arrangements other than sole custody is not new. In the early cases of many jurisdictions custody was routinely divided when both parents sought it. See Annot., 92 A.L.R. 2d 695, 698 (1963). Shortly after the turn of the century, however, this practice began to be questioned. Id. Nevertheless, some courts have continued to fashion such remedies when deemed appropriate. See Bratt, Joint Custody, 67 Ky.L.J. 271, 282 n.45 (1979).
In recent years the concept of joint custody has become topical, due largely to the perceived inadequacies of sole custody awards and in recognition of the modern trend toward shared parenting in marriage. Sole custody tends both to isolate children from the noncustodial parent and to place heavy financial and emotional burdens on the sole caretaker, usually the mother, see Bratt, supra, 67 Ky.L.J. at 275; Miller, Joint Custody, 13 Fam.L.W. 345, 354-57 (1979), although awards of custody to the father, especially in households where both parents are employed outside the home, are more common now than in years past. Moreover, because of the absolute nature of sole custody determinations, in which one parent "wins" and the other "loses," the children are likely to become the subject of bitter custody contests and post-decree tension. Id. at 355. The upshot is that the best interests of the child are disserved by many aspects of sole custody.
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.*fn2 Under a
joint custody arrangement legal custody -- the legal authority and responsibility for making "major" decisions regarding the child's welfare -- is shared at all times by both parents. Physical custody, the logistical arrangement whereby the parents share the companionship of the child and are responsible for "minor" day-to-day decisions, may be alternated in accordance with the needs of the parties and the children.
At the root of the joint custody arrangement is the assumption that children in a unified family setting develop attachments to both parents and the severance of either of these attachments is contrary to the child's best interest. See Bratt, supra, 67 Ky.L.J. at 296-97; Folberg & Graham, Joint Custody of Children Following Divorce, 12 U.Calif.D.L.Rev. 523, 535 (1970). Through its legal custody component joint custody seeks to maintain these attachments by permitting both parents to remain decision-makers in the lives of their children. Alternating physical custody enables the children to share with both parents the intimate day-to-day contact necessary to strengthen a true parent-child relationship. See Bratt, supra, 67 Ky.L.J. at 299-300; Greif, 49 Am.J.Orthopsych. 311, 315 (1979).
Joint custody, however, is not without its critics. The objections most frequently voiced include contentions that such an arrangement creates instability for children, causes loyalty conflicts, makes maintaining parental authority difficult, and aggravates the already stressful divorce situation by requiring interaction between hostile ex-spouses. See Miller, supra, 13 Fam.L.W. at 366-68; 2 Foster & Freed, Law and the Family, § 29.6A (Supp.1981). Although these same problems are already present in sole custody situations, see Bratt, supra, 67 Ky.L.Rev. at 305-06, some courts have used these objectives either to reject or strictly limit the use of joint custody.
Because we are persuaded that joint custody is likely to foster the best interests of the child in the proper case, we endorse its use as an alternative to sole custody in matrimonial actions. We recognize, however, that such an arrangement will prove acceptable in only a limited class of cases, as set forth more particularly in part VII of this opinion. But despite our belief that joint custody will be the preferred disposition in some matrimonial actions, we decline to establish a presumption in its favor or in favor of any particular custody determination.*fn3 Our concern is that a presumption of this sort might serve as a disincentive for the meticulous fact-finding required in custody cases. See Folberg & Graham, supra, 12 U.Calif.D.L.Rev. at 577. Such fact-finding is particularly important in these cases because the very interplay of parents and children that gives joint custody its potential value also creates complications different from those found in sole custody arrangements. Some of those complications are dramatized by the instant case.
The parties were married in July 1963. Their two daughters, Lauren, now age twelve, and Kirsten, now age ten, were adopted in infancy. Plaintiff-husband is a successful commercial photographer. Defendant-wife works as a part-time student teacher supervisor at a local college. Since February 14, 1976, when Mr. Beck left the marital residence, the girls have resided with their mother subject to periodic visitation by their father.
In September 1977 plaintiff-husband filed a complaint for divorce based on eighteen months separation. N.J.S.A. 2A:34-2(d). He sought liberal visitation rights but not custody of the
children. Defendant answered and counterclaimed for divorce on grounds of desertion. N.J.S.A. 2A:34-2(b). The initial proceeding was concerned solely with financial matters pertaining to alimony, child support and equitable distribution. The issue of custody appeared to be settled by the pleadings until April 12, 1979 when in the course of its decision the trial court decreed sua sponte that both legal and physical custody would be shared by the parties.*fn4
The court supported the decree with reference to the "uniqueness" of this case. It found the parties to be "sophisticated," with a generally "positive attitude between themselves with regard to the girls;" that plaintiff's income is sufficient to support two households; that the children's ages presented no obstacle; that the proximity of the residences would enable continuity of schooling despite changes in physical custody; that the prior visitation arrangement had been maintained "with no difficulty whatever" between the parties; and, finally, that because the girls were adopted, they needed "the benefit, contact, and security of both parents."
Shortly thereafter, defendant moved for an order amending the findings and judgment of the trial court on the issue of joint custody. Plaintiff opposed the motion and both parties filed lengthy certifications. After reviewing the certifications and hearing argument, the trial court ordered a plenary hearing on the issue of custody. At the hearing defendant testified and also produced a child psychiatrist to testify on her behalf. Plaintiff chose not to testify himself, although he had done so extensively during the first proceeding, but offered three experts in support of his lately-adopted position favoring joint
custody: a school psychologist, a clinical psychologist, and a psychiatric social worker. Also, in the course of the hearing the court for the first time met privately with the girls. As might be expected, the expert testimony on each side varied. Because of the acutely fact-sensitive nature of custody determinations, we offer more extended ...