The demise of a relationship can be particularly painful for parents, who are left to figure out how much time they will spend with their child(ren) post-separation. Who will have weekend parenting time? How many overnights will a parent have with their child(ren) on any given week? With modern trends and attitudes pushing us to consider equal parenting time arrangements for separating parents, we must consider whether such parenting time arrangements are appropriate. Moreover, if there is a presumption that parents are entitled to equal parenting time—through legislation or judicial precedent—then what role will courts play in custody and parenting time determinations thereafter?
New Jersey was an early advocate for making case-by-case decisions related to the welfare of a child when, in 1956, in Fantony v. Fantony, 21 N.J. 525 (1956), the New Jersey Supreme Court set forth the benchmark for an award of custody: the “best interests” of the child, taking into account the child’s safety, happiness, and physical, mental, and moral welfare. Despite the establishment of this standard, mothers frequently were still awarded custody of young children on account of their maternal instincts. See Esposito v. Esposito, 41 N.J. 143 (1963); Grove v. Grove, 21 N.J. Super. 447 (App.Div.1952). This theory, referred to as the “tender years’ doctrine,” loomed over custody determinations in New Jersey until the 1960s and 1970s, when it began to change in response to a social movement clamoring for gender-neutral decisions and an acknowledgment that both parents play a role in the development of children. M.P. v. S.P., 169 N.J. Super. 425 (App.Div.1979).