Articles Posted in Child Custody

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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