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Nufrio v. Nufrio

June 29, 2001


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1001-97.

Before Judges Stern, A. A. Rodríguez and Fall.

The opinion of the court was delivered by: Fall, J.A.D.


Argued: May 3, 2001*fn1

In this matrimonial appeal we consider the appropriateness of establishing a joint legal custodial relationship between parents as to their minor child, irrespective of the parenting time-sharing arrangement. We hold that the allocation of the amount of time each parent spends with the child is not the sole basis for determining whether the parties should share "joint legal custody" of their child. Moreover, we conclude that the prime criteria for establishing a joint legal custodial relationship between divorced or separated parents centers on the ability of those parents to agree, communicate and cooperate in matters relating to the health, safety and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other. The ability of parents to put aside their personal differences and work together for the best interests of their child is the true measure of a healthy parent-child relationship. A judicial custody determination must foster, not hamper, such a healthy relationship. Therefore, a parent's amenability or inability to cooperate with the other parent are factors to be considered in awarding joint legal custody.

Defendant, Marc. E. Nufrio, appeals from the custodial and other provisions contained in the final judgment of divorce entered on November 29, 1999, after a trial. The relevant marital and procedural history is, as follows. The parties were married on December 7, 1991. One child was born of the marriage, Ryan, on May 25, 1995. The parties separated on August 27, 1996, and each party filed a complaint for divorce on or about November 1, 1996. The complaints were consolidated by an order entered on November 22, 1996.

The contested issues in the case focused on the parties' dispute concerning the issue of joint legal custody. Our Supreme Court clarified the definitions of "joint physical custody" and "joint legal custody" in Pascale v. Pascale, 140 N.J. 583, 595-97 (1995). The Court reaffirmed the principle that "'[p]roperly analyzed, joint custody is comprised of two elements — legal custody and physical custody[.]'" Id. at 595-96 (quoting Beck v. Beck, 86 N.J. 480, 486 (1981)). In discussing the concept of joint physical custody, the Court explained:

"[J]oint physical custody" means "joint responsib[ility] for 'minor' day-to-day decisions" and the exertion of continuous physical custody by both parents over a child for significant periods of time. Although there is no established norm for such custody, experts cite common schedules for a child within a joint physical custody framework as spending three entire days with one parent and four entire days with another parent or alternating weeks or even years with each parent. Thus, the import from the voluminous literature on the subject is that "joint physical custody" means that the child lives day in and day out with both parents on a rotating basis. Numerous "parenting times" with a child do not constitute joint physical custody; to constitute joint custody, each parent must exert joint legal and joint physical custody over the child.

A review of New Jersey cases leads us to believe that "joint physical custody" is as rare here as it is in other states. [Pascale, supra, 140 N.J. at 596-97 (quoting Beck, supra, 86 N.J. at 487 (1981); other citations omitted).]

In discussing joint legal custody, the Court stated:

Joint legal custody, meaning the "authority and responsibility for making 'major' decisions regarding the child's welfare," is often shared post-divorce by both parties. Joint legal custody provides rights and responsibilities to custodial parents, but it also confers rights with less significant responsibilities to non-custodial parents. Indeed, that type of joint venture is found in the majority of custody arrangements throughout the country today.

In New Jersey, joint legal custody with physical custody to only one parent is much more common [than joint physical custody]. Time spent with the non-custodial parent may vary widely. In a recent case, the Appellate Division defined "liberal visitation" to the non-custodial parent as consisting of alternate weekends, one night per week, and alternate major holidays, including holidays like Labor Day and extended school holidays. McCown v. McCown, 277 N.J. Super. 213, 214 (App. Div. 1994). We find that type of schedule for "parenting time" is common in cases of joint legal custody with only one parent having physical custody. Thus, the continuum in this State for the "parenting time" of non-custodial parents is wide and the cases of "joint physical custody" are rare. [Id. at 596, 597 (quoting Beck, supra, 86 N.J. at 487; other citations omitted).]

The Court also adopted the concept of the "primary caretaker" in joint legal custodial relationships, stating:

In cases of only joint legal custody, the roles that both parents play in their children's lives differ depending on their custodial functions. In common parlance, a parent who does not have physical custody over [his or] her child is the "non-custodial parent" and the one with sole residential or physical custody is the "custodial parent." Because those terms fail to describe custodial functions accurately, we adopt today the term "primary ...

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