In the past few decades, the concept of child rearing after a divorce has evolved noticeably.
Traditionally, courts favored the custodial parent, usually the mother. In recent years, however, landmark court cases in states such as New Jersey have created more equitable custody arrangements. In some cases, states have even set up task forces to examine the issues surrounding child custody.
History of Child Custody
In order to comprehend our current laws, it may be helpful to look at the early foundations of child custody in the United States.
As far back as colonial times, the courts were content to follow English common law, which generally awarded custody to the child’s father after a divorce, due to their status as the main provider. Since women’s rights were normally subordinate to their husbands or their fathers, their individual rights were extremely limited. Consequently, they had little chance of getting custody after a divorce. Nevertheless, attitudes began to change with the advent of the Industrial Revolution and the resulting shift from agricultural work towards machines and manufacturing. With these changes, mothers took center stage as caregivers for the children when the fathers went to work outside the home.
Custody of Infants Act
Eventually, England enacted the Custody of Infants Act of 1839, which left custody decisions up to the discretion of the judge instead of merely handing sole responsibility over to the father. In addition, this law also granted power to the mother to appeal to the court for child custody up to the age of seven. Subsequently, British Parliament expanded this notion in 1873 with the Tender Years Doctrine, which extended the age of custody to 16. At this point, the idea that the mother should be the primary caregiver during a child’s formative years had firmly taken root in society. Many states in America followed England’s lead, and the Tender Years statute remained in effect for most of the next century.
Rising Divorce Rates
It wasn’t really until the 1960s and a spike in the divorce rates that we began to see an alteration of child custody agreements. As women fought for equal rights in the workplace, men’s groups advocated for more equitable arrangements regarding custody. As more women joined the workforce, people adjusted many of their long-held notions about parenting and even started to realize the father’s importance to a child’s development.
Joint custody as a concept grew out of these changing attitudes, and soon California became the first state to adopt it as an option in 1979. In a little over ten years, most states followed suit. Nonetheless, the law has continued to evolve and has even witnessed a number of sweeping changes within the second decade the twenty-first century.
Relocation and Custody
While joint custody or shared parenting has become commonplace, courts were reluctant to permit the custodial parent to leave a state with children who shared custody with a non-custodial parent. In this case, either permission from that parent or a very strong reason for relocating was necessary. However, Baures v. Lewis in 2001 established that a good-faith reason was sufficient in lieu of the other parent’s permission as long as it was also clear that relocating wouldn’t harm the child’s interests in any way. Apparently, the system still favored the needs of the custodial parent above those of the child. Essentially, the child would be happy if the move made the primary parent happy.
New Jersey Supreme Court
Nevertheless, a ruling by the New Jersey State Supreme Court in Bisbing v. Bisbing in July of 2017 basically overhauled nearly two decades of family law regarding child relocation. The court stated that a parent who wishes to move a child out of New Jersey without the noncustodial parent’s permission must prove that such a move is in the best interests of the child. In other words, the spotlight was now upon the child’s needs instead of merely having to convince the court that relocation wouldn’t harm the child. Apparently, the Bisbing ruling was just the thing that many family lawyers had been seeking for years.
How Things Have Changed
The old standard clearly undervalued the noncustodial parent’s contributions to a child’s upbringing. Furthermore, recent studies have affirmed how much a child’s welfare depends upon remaining in close contact with both parents. For this reason, many lawyers and family law advocates hailed this as a huge step in the right direction.
The Bisbing case also demonstrated that both parties in a divorce are to be treated with mutual respect, and that neither should have an unfair advantage where legal joint custody exists. It not only placed the child’s needs front and center, but it also shifted the burden to the parent wishing to leave the state.
With this ruling, New Jersey joined a majority of states in which the best interests of the child are the primary focus in relocation cases. While the concept of family has transformed markedly in recent years due to changes like same-sex marriages and single parent households, courts have often struggled to keep pace, especially in cases involving divorce and separation. The strength of this ruling is that it signaled New Jersey’s desire to evolve along with the changing family dynamic. Moreover, it also stands as an acknowledgement of the equal importance of both parents to the health and welfare of a child.