Mayer v. Mayer

• Decision Date: 24 May 1977
• Citation: 150 N.J.Super. 556,376 A.2d 214
• Parties: Betsy C. MAYER, Plaintiff v. Martin C. MAYER, Defendant.
• Court: New Jersey Superior Court

Page 556

150 N.J.Super. 556

376 A.2d 214

Betsy C. MAYER, Plaintiff v. Martin C. MAYER, Defendant.

Superior Court of New Jersey, Chancery Division.

May 24, 1977.

Gary N. Skoloff, Newark, for plaintiff (Skoloff & Wolfe, Newark, attorneys).

Gardner B. Miller, Upper Montclair, for defendant (Miller & Lawless, Upper Montclair, attorneys).

DUFFY, J. S. C.

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 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, 320 A.2d 496 (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, Freud and Solnit, Beyond the Best Interests of the Child (1973). This choice would maximize,

* * * (i)n accord with the child's sense of time, the child's opportunity for being wanted and for maintaining on a continuous, unconditional, and permanent basis a relationship with at least one adult who is or will become the child's psychological parent. (at 99)

"Sense of time," "opportunity for being wanted" and "psychological parent" are terms of art coined by the authors.

Another approach is that of John Batt, who approaches child custody questions "from a psychologically oriented child development standpoint." Batt, "Child Custody Disputes: A Developmental-Psychological Approach to Proof and Decisionmaking", 12 Willamette L.J. 491 (1976). He proposes that the court take into account five phases of development of the human child before making a custody placement. The phases generally follow the growth of the child from infancy to young adulthood.

The "best interests" standard was authoritatively announced in New Jersey in 1944 by the Armour decision and has since been followed by our courts. Armour v. Armour, 135 N.J.Eq. 47, 52, 37 A.2d 29 (E. & A.1944). See S. v. H.M., 111 N.J.Super. 553, 559, 270 A.2d 48 (App.Div.1970); DiBiano v. DiBiano, 105 N.J.Super. 415, 418, 252 A.2d 735 (App.Div.1969). Other formulations of the "best interests" test require the court to consider the safety, happiness and physical, mental and moral welfare of the child. Fantony v. Fantony, 21 N.J. 525, 536, 122 A.2d 593 (1956); Schwartz v. Schwartz, 68 N.J.Super. 223, 233, 172 A.2d 97 (App.Div.1961); Sheehan v. Sheehan, 38 N.J.Super. 120, 125, 118 A.2d 89 (App.Div.1955); Matflerd v. Matflerd, 10 N.J.Super. 132, 136, 76 A.2d 722 (App.Div.1950).

The court has broad discretion in dealing with the custody of a child, being always aware that the welfare and happiness (best interests) of the child is the controlling consideration. Sobel v. Sobel, 46 N.J.Super. 284, 286, 134 A.2d 598 (Ch.Div.1957).

The court will consider the wishes of an infant child as to custody, if the child is of an age and capacity to form an intelligent preference as to custody. N.J.S.A. 9:2-4; Gardner v. Hall, 132 N.J.Eq. 64, 81, 26 A.2d 799 (Ch.Div.1942), aff'd 133 N.J.Eq. 287, 31 A.2d 805 (E. & A.1943). The preference of the young child has a place, although not a conclusive place, in determining custody. Callen v. Gill, 7 N.J. 312, 319, 81 A.2d 495 (1951); Sheehan v. Sheehan, infra, 51 N.J.Super. at 291, 143 A.2d 874. ²

Commentators have suggested that a prerequisite to an award of custody should be the appointment of independent counsel for the child so as to safeguard his or her rights. Comment, "A Child's Right to Independent Counsel in Custody Proceedings: Providing Effective 'Best Interest' Determination through the Use of a Legal Advocate," 6 Seton Hall L.Rev. 303 (1975); Inker and Peretta, "A Child's Right to Counsel in Custody Cases, 5 Fam.L.Q. 108 (1971). While this court has assigned independent counsel for children in the past, such a procedure, which entails considerable expense, should be utilized only where the interests of the child are truly adverse to those of the parent(s). One example of such adverse interest would be the situation where neither parent is a fit custodian. That is not the case here.

To which parent, then, should custody be awarded? Our courts have long recognized that custody of a child of tender years ordinarily is awarded to the mother if she is a fit and proper person. Esposito v. Esposito, 41 N.J. 143, 145, 195 A.2d 295 (1963). The theory is that the mother will take better and more expert care of the small child than the father can. Matflerd v. Matflerd, supra, 10 N.J.Super. at 137, 76 A.2d 722; Seitz v. Seitz, 1 N.J.Super. 234, 240, 64 A.2d 87 (App.Div.1949). These considerations must always be considered subordinate, however, to what is truly in the child's best interest. Vannucchi v. Vannucchi, infra, 113 N.J.Super. at 47, 272 A.2d 560; DiBiano v. DiBiano, supra.

In the present case the question is not so much "to which parent should custody be awarded" as it is "should custody be awarded to both parents?" Nelson states that

Where both parents are suitable persons to have the custody of their...