When actress Halle Berry and Gabriel Aubry called it quits last April, reports claimed the split was amicable. The couple was even seen enjoying outings together with their young daughter. Now, however, the two are involved in a bitter custody battle. With each flinging accusations aimed at proving the other unfit, these celebrities prove just how contentious the legal battle can become when custody is involved. (1)
There may have been a time when custody was almost always granted to the mother unless she was proven to be emotionally, physically, or mentally unfit. But that was a time of traditional roles, when mothers were the primary caregivers and fathers the primary breadwinners. Today’s familial roles are not so clearly defined. Courts can no longer depend on traditional definitions of “mother” and “father” when deciding custody matters. So what do the courts look for?
New Jersey recognizes the custodial rights of both parents, but also considers the child’s best interest. Courts must determine if both parents can, and are willing to, meet the basic needs of their children, which vary with age. Some issues the courts consider include any domestic violence history; the parents’ fitness; their work responsibilities; their ability to cooperate and communicate regarding their children; and their willingness to allow each other to fulfill their parental responsibilities. (2)
There are two forms of custody acknowledged by State law: legal custody, which pertains to the right to make decisions for the children, and physical custody, or where the children will live. Two forms of legal custody are recognized in New Jersey. Joint legal custody, which is preferred in this State, gives both parents equal say in decisions relating to the children. Sole legal custody gives that right to one parent and is usually awarded only if the other parent is proven unfit to make decisions. (3)
Physical custody has three forms: sole, shared and split. In sole physical custody, the children share a primary residence with one parent, while the other is granted visitation. In shared custody, children spend no more than five, nor less than two, days a week with each parent. Split custody allows one child to primarily live with one parent, while another child lives with the other. (3)
Custody issues, whether parents were legally married or not, can be complicated and are court-enforced to protect both children and the rights of parents.