Articles Posted in Child Custody

Couples with children who go through a divorce often bring up several points of contention that will need to be addressed in the final divorce order. Divorcing parents often request orders for child custody, visitation, child support, alimony, and property division, among other things. When circumstances change after a divorce is finalized, one of the parties may motion or petition the court to modify the divorce orders to more fairly incorporate those changes into the parties’ legal obligations. The Appellate Division of the Superior Court of New Jersey recently ruled on an appeal filed by a father, which sought to modify the custody and child support provisions of his divorce from his ex-wife.

The plaintiff in the recently decided case is a woman who divorced the defendant several years ago. At the time of their divorce, the parties shared a two-year-old daughter. To resolve their divorce, the parties entered into a settlement agreement, which gave the mother primary placement of the child, with the father having parenting time every other weekend and one weeknight per week. The parties also agreed on an amount of child support that the father would pay to the mother.

Since the entry of the final divorce order, the father has alleged that circumstances have changed and the order should be changed. For a New Jersey custody and support order to be changed, the moving party must show that there has been a substantial change in circumstances to justify the modification and that any changes would further the best interests of the child(ren) involved. The father argued that the mother’s move to a new town with her new husband affected his daughter’s quality of life, while also alleging that the mother took a higher-paying job with her new husband, and requesting support be recalculated with the parties’ updated incomes.

A recent decision from the New Jersey Appellate Division centered on the decision that a child attend the public school where the father lives in a contentious child custody case. In that case, the mother had filed for divorce, and the husband and wife agreed to temporarily share joint legal custody and to designate the mother as the parent of primary residence (PPR) and the husband as the parent of alternative residence (PAR). They worked out an alternating weekly parenting schedule. However, the parents had numerous issues in co-parenting the child, including deciding the child’s medical care, agreeing on how to share holidays and birthdays, and deciding on the method of communication between the parents. The parents also could not agree on where the child should attend preschool, and ended up having the child attend one preschool on Tuesdays and Thursdays (in the mother’s town of Moorestown) and another preschool (in the father’s town of Mount Laurel) on Fridays.

Three years after the mother filed for divorce, the court held a custody trial that lasted six days. The child was four years old at the time. The mother, the father, the mother’s parents, the director of one preschool, the father’s employer, and a police officer who was involved in a domestic dispute testified during the trial. At the conclusion of the trial, the judge decided to grant joint physical and legal custody to the parties. He declined to designate either parent as the PPR, finding it was not in the child’s best interests to do so. He also ordered that when the child was to begin kindergarten, that she be enrolled in the public school district where the father lived and where he worked as a guidance counselor. He noted that both Mount Laurel and Moorestown had good school districts. He also noted that the father planned to continue living in his town long-term, whereas the mother was not sure about her future living arrangements. The mother appealed the decision.

The appeals court upheld the decision of the family court. The court found that the judge’s decision was supported by the evidence in the record and the decision was within the court’s discretion. The court also noted that the father’s town had a full-day kindergarten program, whereas the mother’s town provided full-day kindergarten only at a significant cost. The court reasoned that the child spent “considerable time” with each parent and went to preschool in two different towns so that she was not so rooted in one community that the decision would uproot her life. Although the mother was the child’s primary caretaker up until the custody trial, both parents had spent significant time with the child.

The right to raise and maintain a relationship with one’s child is a fundamental right. In a recent case before the New Jersey Appellate Division, the court upheld the visitation rights of a father who had not seen his daughter in three years after an allegation of abuse. The mother and father in the case had divorced when the daughter was three years old. According to a settlement agreement, the mother was designated as the parent of primary residential custody, and the father was afforded parenting time.

After the divorce, the mother and father had a difficult relationship and filed several post-judgment motions concerning the father’s parenting time. At some point, there was an allegation that the father had inappropriately touched his daughter. However, law enforcement and the Division of Child Protection and Permanency did not find evidence to support the allegation. The mother later filed a motion for the recusal of the family judge. When the judge then scheduled a hearing, she requested an adjournment and then argued that she had appealed the decision on the motion for recusal and could not appear because the appeal was pending. The mother failed to appear for a scheduled hearing, and in her absence, the judge granted the father supervised parenting time. The court reasoned that the mother’s appeal was deficient because there was no decision on the motion, and thus, her failure to appear was unexcused. The father had filed a request for parenting time more than two years prior. The judge noted that the father and daughter had not seen each other in three years and found that the mother was purposely alienating the daughter from the father.

The mother appealed the decision, and the appeals court upheld the judge’s decision to grant the father supervised parenting time. The court reasoned that New Jersey law “favors visitation” and the right to visitation “is strong and compelling.” The court noted that the allegation against the father was not found to have merit by law enforcement or the courts, and the father and daughter had not seen each other in three years and thus upheld the judge’s decision.

An appeals court recently issued a decision in a New Jersey custody case concerning the appeal of a sole custody award to a mother, despite the parents’ agreement to the contrary. According to the court’s opinion, the parties were married for 11 years and had one child together who was 11 years old at the time of the trial. The husband filed for divorce and sought joint legal custody of the child and to be designated the parent of primary residence.

The parties attended mediation and prepared a custody agreement through mediation in which the wife was designated the parent of primary residence. The wife then filed a domestic violence complaint against the husband, and a judge found the husband had harassed the wife. The court later held a divorce trial, which focused on economic issues in the divorce and had little to do with custody. The wife advocated for primary residential custody and joint legal custody and the husband stated that he was fine with the shared custody agreement, though he would have liked full custody. Despite the parties’ agreement, the court awarded sole legal and physical custody to the wife, based in part on the domestic violence proceeding, a claim by the wife that the husband had improper conversations with the child, and the husband’s long work hours. The husband appealed the decision, arguing the award of sole legal custody was an abuse of discretion because it was contrary to the parties’ positions at trial and uncontested.

New Jersey Policy on Physical and Legal Custody

Under N.J.S.A. 9:2-4, New Jersey has a stated policy of allowing children to have frequent and continuing contact with both parents. The statute explicitly states that “it is in the public interest to encourage parents to share the rights and responsibilities of child-rearing in order to effect this policy.” The law further states that a court will respect custody arrangements agreed upon by the parents unless it is not in the best interests of the child. Physical custody refers to where the child physically resides. Legal custody refers to the authority to make major decisions in the child’s life and is often shared by both parents. Based on the state’s policy, courts often favor custody arrangements that provide for joint legal custody and joint physical custody.

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During a divorce, coming to an agreement about custodial arrangements is often one of the most hotly contested issues between parties. Moreover, when subsequent changes need to be made to custodial arrangements because of changes in circumstances, things can get just as messy as they were when the arrangements were made in the first place. Before pursuing such changes, it is always important to consult with an experienced New Jersey family law attorney to ensure that you know your rights.

In a recent Superior Court of New Jersey Appellate Division decision, the court had to consider whether the defendant (Mother) would be allowed to take her children to visit extended family given their original custodial agreement. In the case at hand, the Mother moved to change her parenting time schedule so that she could bring their children to see their paternal grandparents. The plaintiff (Father) sought to restrain the Mother from doing this. The lower court sided with Father and denied Mother’s motion for reconsideration.

On appeal, the court stated that a party seeking to modify custody must demonstrate that the changed circumstances affect the welfare of the children. Furthermore, the appellate court found that the lower court erred in denying Mother an opportunity for reconsideration because she had met all of the requirements necessary for requesting a change by demonstrating a change in circumstances that would affect the welfare of her children. Because Mother demonstrated a change in circumstances, and Father failed to put forward credible reasons to bar his children from seeing their grandparents, the appellate court reversed the lower court’s decision.

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The New Jersey Appellate Division, in an unpublished opinion decided on June 9, 2010 in the case of Fischer v. Fischer (A-0345-09T2), reaffirmed the general rule that unless a party to a post-judgment custody case can demonstrate a prima facie case of changed circumstances, then the Court need not hold a plenary hearing. The Court also noted that in custody matters, the decisions of family court judges will be given special deference given their special expertise in this area of law.

As a practical matter, the need for a plenary hearing in a particular custody case will often turn on the unique facts of that case, as well as the judge hearing it. What constitutes a “change of circumstances” is a subjective matter that might be decided differently from judge to judge. For example, in the reported case of Mackowski v. Mackowski, 317 N.J.Super 8 (App. Div 1998), the Appellate Division reversed the trial judge because a plenary hearing was not held in a case where, from the point of view of the Appellate Division, there did seem to be “genuine and substantial” issues regarding custody.

There are no shortage of arguments a party may try to muster to demonstrate a change in circumstances. A party may seek to argue that a child who once did well in school is now doing poorly, or that the child is now having behavioral problems that did not exist before. Sometimes, the relocation of the custodial parent, even within the State of New Jersey, might be deemed a change significant enough to warrant a hearing on custody. A litigant might attempt to argue that an ex-spouse’s remarriage has had a negative effect on the children. I have seen it persuasively and compellingly argued that the custodial parent is simply not up to the task of caring for the children. Courts are most willing to entertain plenary hearings when the best interests of the child are in question, or, put another way, where it seems that the custodial parent is not adequately protecting the child’s welfare.

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