Over the past few years, we have heard from several attorneys that some Family Part judges are under the mistaken impression that N.J.S.A. 9:2-4 stands for the proposition that, as a starting point in any parenting time dispute, there is a presumption of "equal" (50/50) physical custody. That mistaken approach views the "best interests" factors as the means to diverge from "presumptive" equal physical custody. In addition, there are unpublished Appellate Division decisions that can be interpreted in support of that proposition of law. Although this interpretation may lead to quicker resolutions of custody disputes because litigants (and attorneys) determine that the resources are insufficient to establish the requisite proofs to depart from the presumption, make no mistake: New Jersey law does not presently have a presumption of 50/50 physical custody. 

To fully understand the current state of our law and precedent, it is necessary to analyze some relevant history. In 1906, the Court of Errors and Appeals held that "[i]n the absence of misconduct by the mother, it is customary to award to her the custody of a child of tender years." Dixon v. Dixon, 71 N.J. Eq. 281 (E. & A. 1906). Although the "tender years" doctrine continued for many decades, in 1943, the Court of Errors and Appeals held that "it is well settled that in such cases the best interest of the children is the paramount consideration of the court, not the contentions of the parents." McLaughlin v. McLaughlin, 133 N.J. Eq. 72, 74–75 (E & A 1943). At that time, the then-existing version of 9:2-4 provided: