NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Earlier this year, we blogged about  of our colleague, Aaron Weems' post on our firm's Pennsylvania Family Law Blog, which advised that any recommendations by a parent coordinator would be given a de novo review by a court.  A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

This week, Aaron posted a piece entitled New Rule: No Parent Coordinators Allowed on that blog.  Aaron advises that the Pennsylvania Supreme Court enacted a new rule that stated:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013)....

Aaron noted that this ended the quasi-judicial role of parent coordinators.  He also wondered whether this would result in increased enforcement and modification proceedings. 

As I noted when commenting on Aaron's prior post regarding the de novo review:

Isn't that was it supposed to happen in NJ? Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review. That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator. All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened, 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered. On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

As I blogged previously, New Jersey, while ending the pilot program, does not preclude the appointment of parent coordinators.  If courts defer blindly to the recommendations of parent coordinators, without thoroughly reviewing the issues, will New Jersey be next to totally bar their use? 

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Yesterday, my post on this blog was called "Alimony - Back to Basics."  Just like with alimony, over the years, we have had dozens of posts on this blog about custody and parenting issues.  However, just like with alimony, there are statutory factors that the court, as well as the custody experts, must consider when making decisions (for judges) or recommendations (for experts) related to custody and parenting time.

The following is a refresher on the custody factors set forth in N.J.S.A. 9:2-4 that must be considered:

1. the parents' ability to agree, communicate and cooperate in matters relating to the child;

2. the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

3. the interaction and relationship of the child with its parents and siblings;

4. the history of domestic violence, if any;

5. the safety of the child and the safety of either parent from physical abuse by the other parent;

6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

7. the needs of the child;

8. the stability of the home environment offered;

9. the quality and continuity of the child's education;

10. the fitness of the parents;

11. the geographical proximity of the parents' homes;

12. the extent and quality of the time spent with the child prior to or subsequent to the separation;

13. the parents' employment responsibilities;

14. and the age and number of the children.

These factors are not all inclusive but represent the minimum of what must be considered.  After you decide that you wish to seek custody (or perhaps before you decide to jump into that battle) you should go down each of these factors and review, as objectively as possible, how they would apply to your case.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm's Pennsylvania Family Law Blog wrote an excellent post entitled "Trial Court Must Conduct De Novo Hearings on Parent Coordination Appeals."  As Aaron notes:

 A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

Isn't that was it supposed to happen in NJ?  Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review.  That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator.  All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened. 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered.  On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Very often, clients ask us how old their child has to be before he or she can choose which parent they want to live with.  The answer is not a simple one.  In most cases, absent undue influence or improper involvement of a child in the matter (or worse yet, alienation), once a child is a teenager, their wishes, while not determinative, should at least be considered.  Again, the age and weight given a teenagers wishes varies from judge to judge.

In fact, I tried a case a few years ago where it was undisputed that all of the children said that they wanted to spend more time with the father.  However, it was also undisputed that the father repeatedly improperly involved the children in the matter, or worse, and this, it was also undisputed that additional time with the father was not in the children's best interests.  As a result, his request for more time was denied.  About two years later, he tried to get more time again.  The motion judge (now a second judge hearing this issue) denied it because the submissions confirmed that the father was still improperly involving the children.  Two months later, with no new facts, and no evidence that more time was in the child's best interests, a third judge let the 17 year old go live with the father because it was this judge's belief that, unequivocally, a teenager can choose where they want to live.

This concept was recently discussed in the case of M.I. v. B.I., an unreported (non-precedential) Appellate Division decision released on January 23, 2013.  In this post-judgment case, the Appellate Division repeated the concept that the law requires that a teenager's (here a 15 year old) preference be considered absent evidence that the child was overly influenced by the parent with who she wanted to live.

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We don't typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights - that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated. 

The case I'm talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.  In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered.  The parties ultimately agreed to a joint expert to do the evaluation,  That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.

SYSTEMIC ISSUE #1:  All custody and best interest evaluations are supposed to take 90 days or so.  That almost never happens.  Rather, it is not unusual for it to take 6 months or longer to get a report.  If it is a joint or court appointed expert, the party who doesn't like the report has the right to get their own report so add another several months to the process.  As in this case, where the mother's custody with her own child hinged upon this report, the prejudice cannot be quantified.

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Back in 2009, we blogged about the possible inclusion of Parental Alienation Syndrome in the long awaited next version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). 

In that post, I discussed a US News and World Report article that addressed a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association.

However, as expected for some time, the American Psychiatric Association board of trustees has recently approved the DSM 5 which has will be released in May 2013 and it has been confirmed that Parental Alienation Syndrome will not be included in the DSM V.

I am sure that this is both a defeat to some and a happy time for others. As I noted back then, while there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness. On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.  That said, because it will not be in the DSM, the debate over the issue shall rage on.  Moreover, without a diagnostic code, it will be difficult to get insurance companies, where coverage for mental health issues is often challenging, to pay for treatment related to parental alienation.
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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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This is not a perfect world we live and and few of us are perfect and free from vices.  There is, however, a difference between imperfections and either addiction and/or mental illness that could impair a person's ability to parent their children.  Often, when these issues arise, we try to build safeguards into agreements to protect the children where there is a history of alcoholism, drug abuse or significant mental illness.

These are always tricky cases because the infirm party often (1) is in denial or at least downplays the severity of the issue, (2) doesn't want their problem in writing in a written agreement; (3) there is no agreement as to whether there even is a problem; etc. As such, there are times that we do our best with agreements to put as much teeth as possible into agreements to avoid the cost of trial, not over the actual parenting time, but the protections to be put in place when someone falls off the wagon.  With compromise, however, comes the chance, not necessarily of actual risk to the children (thought that certainly is possible too) but the possibility of putting the kids in danger and being left to fix a problem after damage has been done.

The title of this post is came to me after reading the Y.A.B. v. A.C.B. unreported Appellate Division decision released on November 28, 2012.  In that case, despite evidence that he former husband, who had acknowledged alcohol issues, may have been drinking  (private investigator reports showing him buying alcohol, Facebook pictures of him holding a beer and a Certification from an ex-girlfriend regarding the husband's alcohol use), and protective language in the agreement, not only was his parenting time not meaningfully curtailed, but the ex-wife was seriously chastised for bringing her application.

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Yesterday, Judge Grant, the Acting Administrative Director of the Courts, announced that effective November 26, 2012, the Parenting Coordinator Pilot Program would be ending. The notice further provides that judges may still appoint parenting coordinators (PCs) and even provides model, but not mandatory, Orders for the their appointment. 

To those who oppose the use parenting coordinators, they may see this announcement as a victory of sorts.  However, I would not start jumping for joy, right away.  The good thing about the pilot program is that there were at least published guidelines approved by the New Jersey Supreme Court that could be followed.  In fact, as I wrote on this blog in September of this year we learned from the Milne v. Goldenberg reported decision that even in non-pilot program counties, if a PC was appointed, the Pilot Program guidelines had to be followed.  Query how this provision of the Milne case jibes with the above announcement but only time will tell.

If the Guidelines don't apply, are we going to return to a wild west environment like we had before the Guidelines?  In fact, I blogged about the pre-Guidelines madness all the way back in 2008.  As I noted then, over the years, judges began to make numerous appointments to attempt to, if not rid the courts, at least create a buffer for parenting and visitation issues that arose daily/weekly/monthly in high conflict divorce and post-divorce matters. Sometimes the professional was called a parent coordinator, other times it was a therapeutic monitor, a mediator, a parenting coach, etc. The role was generally the same, that is, to present these issues to a neutral third party that had either a legal or mental health background, or both, to assist the parties work out the differences and in many instances, make recommendations if they could not. 

The problem was that there was no uniformity to what this person, whatever they were called, could do.  Even Pre-Milne but post-Guidelines, I had cases where parent coordinators in non-Pilot Program counties were vested with incredible powers bordering on, if not crossing the line of the abdication of judicial authority, which is not supposed to happen.

Only time will tell whether the role of parent coordinator will go the way of the dinosaurs or go back to the free for all that existed pre-Guidelines.  Until then, we watch and hope that the dissolution of the Guidelines will not make things worse, instead of better.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm's Pennsylvania Family Law Blog wrote an excellent post entitled "Emotional Abuse Just as Harmful as Physical Abuse."

While some of the local programs Aaron discusses for his county may not be available in New Jersey, the piece provides a good explanation of the issues and I encourage you to read it.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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If I were to tell you that the victim of domestic violence was put out of the marital home and the abuser was granted temporary custody of the kids, you would say I was crazy.  The Appellate Division would agree and in reported (precedential) decision released on October 19, 2012 in the case of J.D. v. M.A.D.(ironically), reversed such a holding by a Camden County trial court. 

In this case, the defendant's discovery of the victim's infidelity lead to an act of domestic violence.  The victim, however, wanted to remain in and work on the marriage.  The defendant wanted "space" and somehow convinced the victim to leave the home and sign a document giving him primary custody of the children.  The parties later reconciled and the victim returned to the house.  However, unable to control his anger over her affair, a number of additional acts of domestic violence occur ed, culminating with the entry of a TRO against the defendant.  At the Final Restraining Order hearing, the judge then entertained argument "as to who should have possession of the marital home and as to who should have
temporary custody of the children."  The trial judge decided that it should be the defendant, finding that the anger only occur ed when the parties were together and as such because the defendant had been the primary caretaker, he was awarded temporary custody and the victim was excluded from the marital home. 

The victim appealed and the Appellate Division reversed, holding:

The trial court's findings, set forth in the beginning of this opinion regarding the events over the course of the seven months following defendant's discovery of his wife's extramarital affair, are supported by substantial credible evidence in the record and we do not disturb them. The facts as found, however, do not overcome the presumption embodied in N.J.S.A. 2C:25-29b(11), governing the court's award of temporary custody
in a proceeding under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, "that the best interests of the child are served by an award of custody to the non-abusive parent." Moreover, these facts cannot support an order granting exclusive possession of the marital home to the party the court has found to have perpetrated the abuse.

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An issue that has vexed us in the past is whether the rules enacted by the Supreme Court regarding parent coordinators were to be applied to all parent coordinators appointed by the Court.  In 2006, the New Jersey Supreme Court implemented a pilot program in four vicinages (Bergen, Morris/Sussex, Union and Middlesex) for parenting coordinators.  The link above provides the Supreme Court mandated guidelines and procedures which have also been discussed on this blog previously.

The problem arose when a parenting coordinator was appointed outside of one of those vicinages.  To my chagrin, I have heard judges state and lawyers argue that since their vicinage was outside of the pilot program, they did not have to follow the guidelines.  This was often in the context of a court improperly vesting a parent coordinator with authority which approached or could be argued to be an abdication of the judicial role. 

Finally, we have an answer to this question in the reported (precedential) case of Milne v. Goldenberg decided on September 12, 2012.  The case seems like a never ending, "war of the roses" type custody battle and also has some interesting discussion regarding the role of a Guardian ad Litem and procedures related thereto.  That said, the parent coordinate issue was addressed because the court appointed an attorney who was not on the court approved, pilot program parenting coordinator list. 

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A few years ago, during a conference with a reasonably new judge used the term "off the shelf parenting plan" to describe what he assumed a normal parenting time plan should be.  This plan was alternate weekends, Friday to Sunday night, and one night per week for dinner.  While my client was happy, because she did not want her husband to have more parenting time, with all due respect to the judge who became a very good family court judge just in time to be rotated to another division, was he right?

If this was the 1970s, 1980s or before, perhaps he would be right - or at least that was the prevalent parenting plan at the time.  However, parenting roles, societal norms and more importantly, psychological and social science research have come a long way since then.  Time and again, you no read and hear that, in most cases, children benefit from as much time as possible with both parents.  This does not necessarily mean an equal schedule and also must be adjusted for the ages of the child(ren).  For instance, a proper parenting plan for an infant or toddler, is different than for an older child.  In fact, for infants, there is a lot of research suggesting that overnights are not appropriate, but that more frequent visits are appropriate.  Much of the literature breaks things up as follows:  birth to 2 years; 2 to 3 years; 3 to 5 years; 6 to 9 years; 10 to 12 years; and teenagers.

What is clear, however, if a non-custodial parent wants substantial overnights with their children, assuming that that the kids are over 5, more likely than not, an custody expert will more likely recommend some type of shared parenting schedule, including perhaps true, shared 50-50 parenting. What do I mean by shared parenting? Between 5 and 7 out of 14 overnights. 

As such, if one party is trying to restrict parenting time, I will often suggest that my client seek a custody expert (joint or their own expert) because of the likelihood that absent some problem (psychological issues, abuse issues, substance issues) or logistical issues (the parties live too far apart to make shared parenting work), most experts usually recommend some type of shared parenting because that is what the research suggests is in a child's best interests. 

Are experts making this recommendations only for super involved parents?  Not necessarily, though the more involved the parent has been, the more likely that they can get a 50-50 plan or 6 out of 14 overnights.  Because sometimes judges (as well as mediators and arbitrators) are not always aware of the current developments in the research, the attorney for the party seeking more time has to educate the judge, mediator or arbitrator.  Sometimes that means getting an expert.  Other times, especially if during a motion early in a case, it may mean filing a brief citing and attaching the articles.

The take away here is that it is rare that a parent has to settle for alternate weekends and one night for dinner if they seek more parenting time. 

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501 or esolotoff@foxrothschild.com.

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Keeping with our theme of custody and parenting related blog posts this weekend, I recommend that you read  Aaron Weems', an associate in our Bucks County office and editor of our Pennsylvania Family Law Blog recently post on that blog entitled "Handling the Holidays."

Family lawyers, judges, parent coordinators often don't look forward to holiday seasons because with them come often needless and petty disputes over holiday time.  Aaron's blog provides an interesting perspective on this.  Parents should want their children to remember holidays for the good times, not because their parents put them in the middle of such disputes.  More importantly, the children should not look towards upcoming holidays with dread, wondering if their parents are going to fight about them again.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Oftentimes, issues of custody and parenting time are the most difficult and sensitive decisions that a judge in the family part must make. It involves deliberation of the ever-elusive “best interests of the child” – a question with no right or wrong answers. While the standard is ostensibly subjective, there are certain guideposts that a judge must look to in order make the difficult determinations that come along with issues of custody. Those factors, as set forth in N.J.S.A. 9:2-4(c), include: 

1. The parents' ability to agree, communicate and cooperate in matters relating to the child;
2. The parents' willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse;
3. The interactions and relationship of the child with its parents and siblings;
4. Any history of domestic violence;
5. The safety of the child and the safety of either parent from physical abuse by the other parent;
6. The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision;
7. The needs of the child;
8. The stability of the home environment offered;
9. The quality and continuity of the child's education;
10. The fitness of the parents;
11. The geographical proximity of the parents' homes;
12. The extent and quality of the time spent with child prior to or subsequent to the separation;
13. The parents' employment responsibilities;
14. The age and number of children.

As can be seen in the recent case of Vidal v. Gelak (an unreported/non-precedential decision), when judges do not examine these all-important factors, their decisions face reversal and remand on appeal. 

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 It is well-settled law in New Jersey that prior to the relocation of a child from the this state by a custodial parent on a permanent basis, the parent first must formally request leave from the Court. The court will then examine the move under the factors set forth in the seminal case Baures v. Lewis, which guides the court's relocation inquiry. In Baures, the Court recognized three now-established legal principals:

1. The relocation standard is based upon a custodial parent’s right to seek happiness and fulfillment, which in turn, benefits the child.
2. Upon relocation, the non-custodial parent’s communication and exposure to the child must be sufficient to sustain that relationship.
3. Finally, the custodial parent must provide proof that the child would not suffer as a result of the move.

While Baures is proverbial gospel when it comes to relocation from the State of New Jersey, an interesting question arose in the Ocean County trial Court in McKinley v. Naters, which was approved for publication (binding opinion) on April 13, 2011. Namely, the McKinley case examined whether the court should grant a contested application for a temporary removal of a child to another state for “extended vacation purposes” prior to a formal relocation hearing under Baures?

The parties in McKinley were divorced on December 10, 2002. They share one child together, whom the Court referred to as H.M. At the time of the divorce, the parties agreed to share residential (physical) custody of H.M.

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As a matrimonial lawyer, I often get the question "how old does a child have to be to decide who they get to live with?"  There is a perception out there that there is a magic age where a child is empowered to decide which parent they get to live with.  This simply is not the case. 

Rather, a child's preference is only one factor a court must consider when deciding custody.  Why is the child's preference not absolutely determinative?  Because it is not always reliable and may not be in their best interests.  Maybe the child is too young or too immature for their preference to be relied upon alone.  Maybe one parent is improperly influencing or pressuring a child to express a preference that is not their true preference.  Maybe the child feels bad for and/or feels the need to take care of the parent because of some physical or mental infirmity of the parent or a feeling that the parent is the victim of the other parent.  Perhaps the child has been promised something by the other parent or is trying to play one parent against the other.  Perhaps the child (maybe a teen) feels that the other parent will give them more freedom. 

This issue becomes even more difficult after an initial custody determination is made or agreed to and then a child expresses a preference to live with the other parent.  That was the issue in the unreported (non-precedential) decision in the case of Traynor n/k/a Dallara v. Traynor decided on March 29, 2011.  In this case, the father appealed the denial of his motion to change the custody of his 11 year old daughter who allegedly decided that she wanted to live with him.

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With the advancements in technology, one of the buzz words we have begun hearing about "virtual visitation."   In fact, recently, Julie Ganz, an associate in our Chester County, Pennsylvania office did a piece on our Pennsylvania Family Law Blog on "virtual visitation" and how it is being approved for use in a number of states.  Clearly, with cameras on computers, video chatting, Skype, Face Time on Apple products and the like, the quality of parenting time that a non-custodial parent can have with their children is improved.  Put another way, it seems that being able to actually see children, while not in person, and to have them see their parent, is still better then a phone call, email or text.

At least one court in New Jersey has followed the trend.  Specifically, in Margueron v. Baik an unreported Appellate Division opinion decided on March 21. 2011, a trial court's Order requiring the mother to cooperate with establishing a SKYPE account to enable the father to see and communicate with his child by way of the internet. was upheld.  The facts in the opinion are scant but what is known is that the father was returning to France.  The order also provided that father  have extended parenting time with the child in August each year, one additional week each year, and extended time at Christmas in alternate years. The Appellate Division held that "The judge crafted a schedule that allows communication between father and child that accounts for the geographical distance between them." 

While in this case, the issue was one of distance, the question remains as to whether distance should be a prerequisite to using the new technology, or whether it should be used in every case, no matter the distance.  A complaint, if not painfully sad lament from many non-custodial parents is that they used to get to see their children every day but now they can go days without "seeing" them.  While "virtual visitation" will unlikely ever be a replacement for the real thing, if available, why not use it?  We shall see what the court's do with this going forward.

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Last week, the news reported the decision in the custody case involving Miami Heat guard, Dwyane Wade's, children, after one of the longest custody trials ever in Cook County.  Apparently, a large part of Mr. Wade's decision to seek sole custody of his children was allegations regarding his wife's alienating behavior.  In the decision issued by Judge Renee G. Goldfarb, the Judge held:

This court finds that (Siohvaughn Wade) has embarked on an unstoppable and relentless pattern of conduct for over two years to alienate the children from their father, and lacks either the ability or the willingness to facilitate, let alone encourage, a close and continuing relationship between them.

We have previously blogged many times on issues regarding parental alienation.  Though I do not believe that it has yet occur ed, we discussed the movement to have "Parental Alienation Syndrome" included as a diagnoses in the new edition of the DSM. We have also discussed programs that deal with parental alienation as well as different cases addressing whether there can be tort liability for parental alienation.

What the Wade case shows is that when a parent embarks upon a course of conduct to alienate children from the other parent, and shows little desire, if not an utter inability to foster and encourage a relationship between the children and the other parent, that parent risks losing custody.  Parents divorce each other.  They don't divorce the children.  We cannot ignore the danger of harm to the children when a parent seeks to prevent or destroy the children's relationship with the other parent.  The research is clear that children need both parents in their life.  However, when a parent seeks to destroy the children's relationship with the other parent, they risk having their own time with the children limited in order to mitigate and/or prevent the opportunity for further damage being caused.

The results of parental alienation can be tragic.  It is encouraging to see a court take it seriously and spend sufficient time exploring the issue.

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One of the hardest questions to answer for a client is why a Court doesn't enforce their own Orders.  The next hardest questions to answer are if they found the other side in violation of litigant's rights, (1) why weren't there any real consequences for the violation of the order and (2) why didn't I get counsel fees.  The Court Rules suggest that a litigant is entitled to counsel fees if they are required to come to court to enforce an Order.  In addition, the court rules in the family part also include numerous provisions, including the imposition of monetary sanctions and counsel fees, for violation of a parenting time (visitation) Order. 

As such, it was interesting to see the unreported decision in the case of Friedman v. Friedman decided on March 7, 2011 wherein an awarded of sanctions for violating a parenting time order was affirmed by the Appellate Division.  In this case, the father asserted that the mother violated the parties' parenting schedule when she "signed both children out of school and drove them to [Virginia]." As a result, the father sought sanctions against the mother "for making unilateral changes" to the parenting schedule "and for failing to cooperate with the recommendations of the Parenting coordinator."  The trial judge found that  the mother violated the parties' parenting schedule and the recommendations of the parent coordinator by extending "the children's time with her, in Virginia."  As a result, the mother was ordered ordered to pay the father $500.00 as a sanction plus reimburse him for his costs to file and serve the motion.  The decision was based upon the court's finding that the mother had a history of failing to cooperate with the plaintiff.  In addition, the mother's request to relieve the current parent coordinator was denied.

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Julia Ganz, an associate in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled "Virtual Visitation."

The post talks about how technology can be used to enhance, if not foster parenting time between children and the non-custodial parent.  With the advent and improvement of web cams, Skype and other methods, there are more options than ever. The new Iphone allows for video calling.  In fact, technology such as this can often be used as a method of maintaining contact in relocation cases (while no one is suggesting that it is the same and actual, in person parenting time.)  Julie's post discusses cases from a few jurisdictions which required the use of this type of technology is such case. 

While particularly useful in relocation cases, it is not hard to imagine that the use of this technology will become more prevalent even when both parents live close by.  With that, there will probably be disputes over this well, how much is too much, too often, etc. Stay tuned.

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Following on the heels of Eric Solotoff's recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues.  In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator's involvement in the highly contentious matter.

Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order.  In response to the plaintiff's indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court.  A major issue of contention at both the trial level and on appeal was the parenting coordinator's indication that she would charge the plaintiff for her time taken to respond to his numerous grievances. 

After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator's fees owed.  The trial judge ultimately found for the coordinator, concluding that the plaintiff's grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled "Is Parent Coordination for You?"

Parent Coordinators in New Jersey are nothing new and have been an arrow in the quiver of judges for years to address high conflict divorce cases. I have blogged about the use of parent coordinators and the use of other professionals to assist with custody and parenting issues in high conflict divorces before and they prove a use way to avoid litigation for issues that either require an immediate resolution and/or for issues that require some other way to address the complexities.  I recently had a parent coordinate involved overseeing things in a case where there were some serious mental health issues as to one of the parents, as well as medical issues related to a child.  The parent coordinator was able to gather and distill information and make recommendations.

Parent coordination is not a panacea and not a replacement for a judge.  Judges cannot abdicate their judicial decision making duty nor can they send enforcement issues to a PC.  In fact, that was something that the Appellate Division reiterated in my case of Parish v. Parish which was a reported decision (which we previously blogged about.)

In any event, Mark's blog gives us another perspective of the types of issues you might want to use a PC for and some of the upsides and downsides of doing so.

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War of the Roses style divorces do not just involved money.  Very often, they involve disputes regarding the children, pick up and drop off, inflexibility regarding changes to schedules, etc.  Is the proper remedy to reduce the amount of parenting time one party has to reduce the exchanges and thus reduce the change for conflict? As noted in the unreported (non-precedential) opinion in the case of Weiss v. Weiss, decided on November 24, 2010, one trial court said yes - the Appellate Division said no.  The Court reaffirmed that parenting time cannot be modified without a plenary hearing.

In this case, during the divorce, the parties had a noted child custody expert conduct a custody evaluation which was implemented, as were post divorce recommendations by that expert.  Apparently, due to the high conflict in the case, there was also a parent coordinator involved.  The expert had crafted a schedule such that the children never went more than 4 days without seeing their father. 

However, much conflict continued and much post-judgment litigation ensued.  The mother, who the father alleged was causing the problems, asked that the court change the parenting schedule causing a reduction in the parenting time the father enjoyed.  This reduction was contradictory to the expert's opinion and was not recommended by the parent coordinator either.

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We have blogged about the issue of relocation (removal) with children after a divorce and the standards that a court must follow.  To see our prior posts, click here, here and here.  The considerations are different if the parties have a truly shared parenting plan or if the non-custodial parent has something less than 50-50.  In the latter instance, the move must be made in good faith and not inimical to the child(rens) best interests (and there are numerous factors set forth in the Baures v. Lewis case that a court must consider. For true shared parenting cases, moves are more difficult because a more stringent best interests analysis is employed. On top of that, it is not enough that the parties designate their arrangement as joint or shared custody, the case law post-Baures made clear that it was the actual parenting time that mattered not what the parties described to to be.

Against that backdrop, we turn to the unreported (non-precedential) Appellate Division in the case of Walsh-Morales v. Morales decided on November 5, 2010.  In this case, post-divorce, the mother sought to re-marry and move to Texas with the parties' daughter.  The father moved to bar the move, seeking sole custody if the mother moved.  The mother asserted that she was the primary residential parent- the father asserted that there was true shared parenting.

The trial court determined that there was true shared parenting, denied the mother's request to relocate and directed that the father be the primary parent if the mother moved.  The mother appealed not necessarily as to the law applied, but rather, as to the factual determination that the parties had true shared parenting.

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This post was written by Jessica Goldberg, a new associate in the Family Law Practice Group in the Roseland office and also, a new contributor to this blog.

The recent Appellate Division’s decision in Dunn v. Willis, although unpublished and therefore not precedential, brings up some interesting issues regarding custody disputes. First, it is important to note that when a judge is asked to consider a change in custody, that judge must first find that there has been a change in circumstances warranting further proceedings. In Dunn v. Willis the Judge concluded that the mother, who was seeking custody of her son, had failed to show the necessary changed circumstances. The Appellate Division agreed with the Family Court Judge and within its’ decision a warning can be construed about the dangers of too often involving the Court in family matters.

The history of this case is as follows: Mom, unmarried, had an alcohol abuse problem and although she had stopped drinking by November 2002, she was participating in an inpatient rehabilitation program and the Division of Youth and Family Services was involved with the family. In January 2003 the Court entered a consent order, signed by mom, the child’s maternal grandparents, and the child’s paternal grandparents. This consent order gave custody to the maternal grandparents and visitation rights to the paternal grandparents with the condition that the child’s father not be present during their visitation time. In August of 2003 mom was awarded parenting time with her child. In 2004 mom’s stability begins to become apparent – she is out of rehab, she has a full-time job and she has bought a home near the child’s school. In October 2004 mom makes a motion for a change in custody, but the Court denies this motion. In May 2007 mom gets a bachelors degree in nursing. In December 2007 the Court enters an order increasing mom’s parenting time, however, the Court again denies mom custody. Finally, in April of 2008 mom is awarded joint legal custody with her parents, the child’s maternal grandparents. Another order is entered in June 2008 restricting mom from making unilateral decisions without approval from her parents with whom she shares custody.

Then, in June 2009, mom files a motion, now the subject of this Appellate decision, to obtain custody of her son. By this time mom is working full-time as a nurse and is about to receive her Masters Degree in nursing. Her relationship with the child’s father has improved to the point where they are communicating and the child is building a relationship with his father and the father’s younger son. During this entire time the child has lived with his maternal grandparents and an older half-sister, however, the half-sister is now going off to college and mom asserts that the child, now eleven years old, wants to live with her. The Court, however, denies mom’s request to interview the child or appoint an expert to evaluate whether a change would be in the child’s best interest. The Court denies mom’s motion on the grounds that mom has failed to show the necessary changed circumstances.

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I have previously posted several blog entries about custody and parental rights where DYFS ("Division of Youth & Family Services"), NJ's child protective agency, has involvement.  To read those posts click here, here, or here.

On September 29, 2010, the NJ Supreme Court issued an opinion addressing the standards to be applied to a sibling's request for visitation after children are placed outside the natural family's home and after they are adopted.  The opinion of In the Matter of D.C. and D.C., Minors provides guidelines for those siblings who seek to continue a relationship with their adopted and/or placed siblings and addresses a very important issue for families across this state.

The facts of D.C. can be summed up as follows: Nellie, the biological sister of Hugo and twins sought custody and visitation of her siblings after DYFS removed the children from her mother's care and placed them in separate homes.  In 2005, Nellie, then age 23, resided in Va.  Hugo was 14 years old at the time.  In 2006, Hugo was placed with Nellie.  In 2007, DYFS discussed visitation of the twins with Hugo and Nellie.  In August 2007, Va.'s child placement agency ("RDSS") approved placement of the twins with Nellie and Hugo but expressed concerns about Nellie's ability to support the children.  Based on that concern, visitation was recommended to ease the transition.  Then, in late 2007, RDSS rescinded its recommendation for placement of the twins with Nellie and Hugo because of Hugo's poor grades and Nellie's job loss.

The biological mother's parental rights were terminated in December 2007.  In January 2008, DYFS approved Nellie as kinship legal guardian of Hugo, but not the twins.  At the same time, Nellie was informed visitation with the twins would stop.  In April 2008, Nellie filed an action seeking placement of the twins in her care or alternatively reestablishing the sibling visitation.  DYFS opposed her application.

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I suspect that anyone that read my last blog might think that I am against shared custody or that I believe it to be impossible.  That is not the case.  Rather, my point in that post was to address possibly bad faith requests for joint custody by those people who have historically neither spent a lot of time with the children nor did much of the actual parenting.

But shared parenting time is not an impossibility.  Supposedly, it requires parents who have the ability to communicate and cooperate.  That said, I have seen parents who cannot have a civil word with each other effectively co-parent. 

Shared parenting, by New Jersey standards, is anything between 28% (104 overnights) and 50% of the overnights with the children.  Curiously, these definitions actually stem from the child support guidelines.  When the newest iteration of the Guidelines came into being in 1997 or 1998, they had two different worksheets - a sole parenting worksheet and a shared parenting worksheet (104 overnights and over).  While non-custodial parents now got child support reductions with each overnight, the credit was greater using a shared parenting worksheet. As a result of the new guidelines, negotiations over additional overnights began, in many cases for obvious reasons.

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Picture this scenario.  Parties are married - perhaps even happily - for 14  years.  They have three kids - 12, 10 and 6.  Wife has been a stay at home parent for the last 12 years. Husband is the Type A, master of the universe, over achiever type.  He works in New York City, leaving the house at 6 am and coming home at 7 p.m. The wife took the children to most of their medical and dental appointments, most of the play dates, most of the activities, attended most of the school events, etc.  Maybe the husband went to some, maybe he didn't.  Maybe the husband played his golf or tennis on the weekends - maybe he was part of the suburban shuttle taking the kids to the vast myriad of activities and sports kids are involved in - or both.  In very much of a traditional marriage, the wife was responsible for the kids and the house and the husband was responsible for making the money.  This is not meant to be a social commentary - just a description about how the parties divided the labor and defined their roles in the marriage. 

Fast forward - now the parties are getting a divorce.  A discussion of custody and parenting time has to be had.  One would be surprised about how many times I have seen the husband in these matters demanding 50-50 shared parenting with the kids, almost as if the historical status quo never happened. All too often, this demand is coupled with an attack on the wife's mental health and/or parenting abilities.  This of course leads to the obvious question - if she was so crazy/unstable/incompetent, etc. why did you leave the children in her care for the last X years?

This is not to say that shared parenting is presumptively not reasonable or in the children's best interests. But what is the genesis of the request.  Is it power, control, the desire to pay less child support, the desire to hurt the spouse for having the audacity to divorce them?  Is it a sincere belief that this is what is best for the children, whether it is or not?  Is it a combination of a realization of the time lost with the children in the past coupled with a fear of losing them completely?  Is it revisionist history and/or an exaggerated or grandiose belief regarding the person's actual involvement in the historical parenting of the children?  It is probably an amalgam of many of these things. 

The first question to ask is can the parent actually exercise the time that he is seeking?  If not, the resolution is easy.  Often in the cases, I have seen the parties go through stressful and expensive custody evaluations, with the obvious result - i.e. that the mother is recommended to be the primary custodial parent.  Custody then settles rapidly after that - with the father able to save face and say "I tried." 

That said, I have seen many parents become more involved parents after the divorce.  Maybe this was done for all of the wrong reasons.  Funny thing is that despite the reason, if their relationship with the children strengthens and their involvement increases, that may not be a bad thing either.

This blog is not meant to perpetuate stereotypes or dissuade good faith custody disputes. In fact, I have represented many fathers and have been successful in obtaining custody or shared parenting of some type for them.  On the other hand, before putting your children through a custody evaluation (or several if both parties get their own experts) and spending tens of thousands of dollars on the process, people should think long and hard about what they really want and what is really best for the children. 

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In today's New York Post there was an article about a Long Island woman getting jail time for her repeated interference with her ex-husband's time with the parties' children.

The article describes how the woman tried to keep the father and his daughters apart for weeks at a time and that she even falsely alleged that he groped one of his daughters.  The story goes on to say how the mother went on expletive filled tirades about the father in front of the children.  Further, she often scheduled last minute trips and events meant to frustrate parenting time.  The father was forced to either consent to not disappoint the girls and when he did not, she would berate him.  The judges stated that she. "... is a vengeful roadblock, the barbed wire standing in the way of her two daughters and their desperate dad."

All of the above acts are very typical acts of parental alienation.  In the past we have blogged about programs dealing with parental alienation and the fact that there is some consideration to adding parental alienation as a diagnosis to the next DSM.  Parental alienation syndrome is a very polarizing term because the person who coined the phrase, Dr. Richard Gardner, was self-published and the scientific bases to his conclusions were questioned.   His proposed remedies to alienation were also severe and there were a few notorious cases where his recommendations were followed by tragic results.  On the other hand, there is more and more research about parental alienation and its insidious effects.  The alleged conduct of the mother above contains some classic alienating behavior.

But what is the remedy.  We have recently blogged that the NJ Appellate Division rejected tort damages for emotional distress as a remedy. in most cases.  There are criminal statutes to prevent interference with custody orders but, anecdotally, they rarely seem to be used.  Similarly, there are court rules allowing for sanctions for interference with parenting time.  However, all too often, this becomes a he said/she said situation and court's rarely hold hearings to get to the bottom of this much less impose sanctions.  In fact, often this kind of conduct results in the appointment of a parent coordinator, often adding another level of costs even though the Appellate Division, the the recent reported case Parish v. Parish (which was my case) has made clear that parent coordinators should not be dealing with enforcement issues. 

While jail is a drastic remedy and probably not appropriate in all cases, it is refreshing to see that a judge got tough with repeated custodial interference.  Perhaps this will serve as a deterrent to others, but probably not because many people who do this feel justified and/or believe that they are protecting their children.  We can only hope. 

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The online edition of today's New York Post reported that Tiger Woods and his wife Elin have resolved the issue of custody.

The details were not really set forth in the story nor are they really important.  Assuming all that has been reported on is true (and quite frankly if even if only some of it were true), if there is ever a spouse that had a right to be really mad it is Elin Nordegren.  Yet even these people were seemingly able to put aside the anger, lack of trust, resentment, etc. that is likely to exist to do what is best for their children.  From all accounts, it does not appear that the children were used as pawns. 

So if this story is try, these people should be commended and serve as an example to others (at least as to this issue and maybe golf) on how to put aside the emotional issues surrounding a breakup and potential divorce and put the children first. 

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Previously, we blogged about a trial court opinion that allowed a parent to seek damages for interference with custody/parental alienation.  In fact, we noted the conflicting trial court opinions released in the last year or so, one of which (in Hudson County) allowed a suit for intentional infliction of emotional distress in these matters, and another (in Morris County) which denied this relief for failing to state a claim.The Appellate Division weighed in on the Morris County case on May 3, 2010, affirming Judge Rand's decision to dismiss the case in Segal v. Lynch.  This was a reported, thus precedential opinion.

While rejecting the trial court's decision to dismiss the case based upon the "Heart Balm Act" which prohibited suits for interference with a marital relations, the Appellate Division nonetheless decided that the suit was barred based upon best interest and public policy considerations.  In doing so, the court held:

We acknowledge with equal force, however, that plaintiff's cause of action raises profound questions of public policy concerning the propriety of permitting a parent to utilize a child's loss of affection for him or her as grounds for civil liability against the other parent. On its face, such a cause of action has the potential to deteriorate into an abusive process; it can be wielded like a sword by an emotionally
distraught parent with little to no consideration of how the litigation will affect the child. Most alarming is the potential for great harm such a cause of action would pose to the child.

Our overarching consideration in all matters concerning children involved in the judicial system is "the best interests of the child." This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child. Application of this principle to the case at hand leads us to one inexorable conclusion: plaintiff's cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children
involved in this suit.

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Today's Daily Record has a story of a parenting time dispute that happens all too often. The story, written by Peggy Wright, tells a of a visitation/parenting time fight because a father wanted his 10-year old daughter to attend his birthday party instead of participating as a flower girl in her godmother's wedding. 

In ruling that the child should be permitted to participate in the wedding, the judge said that she believed the  girl should have the experience of wearing a special dress and shoes and eating the cake and hearing wedding music.  The article further states:

"A birthday party happens every year. A wedding is once-in-a-lifetime," Whipple said.  Saying she didn't mean to diminish the importance of a child celebrating a birthday with a parent, Whipple nonetheless said the wedding experience — and accompanying her bridesmaid mother down the aisle — would be unforgettable for a little girl. Addressing Miller directly, the judge asked: "Do you really want to say 'no dress, no cake, no wedding, no bridesmaid, no band? You have to go to my birthday party.' Do you really want to take that away from her?"

Though in one respect, the father had a right to be upset because the wedding was taking place during his scheduled parenting time, this is a typical example of divorce or divorced couples failing to be flexible and having a tug of war with their children, to the detriment of their children.  A simply remedy may have been to trade weekends or otherwise provide for make up parenting time.  Moreover, it was unclear from the story, but depending on how much notice the father had of this wedding, perhaps his birthday party (which was not on his actual birthday) could have been scheduled for a different do so that there was no conflict.  On the other hand, if the mother did not give the father adequate notice, as is often the case in these situations, then she too could have been responsible for this dispute.

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On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish.  This case is near and dear to me because I represent Mr. Parish and we made new law. 

In this post-judgment litigation we filed a motion seeking enforcement of the parties' divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish's ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them - he ex-wife would not state if she agreed or not, waiting to see what the court would do.

The trial court denied Mr. Parish's motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.

We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish's access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.

The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant's access to the Court can be restricted.

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I recently read an article about post-divorce parenting. The article made suggestions that I thought were important to echo. In my practice, I see and meet all types of people and parents. Divorce often brings out the worst in people. It’s an emotional time - separation from a partner, equitable distribution, visitation, sale of the marital home, separation from children, moving, dividing of assets, alimony, infidelity, child support, negotiations, court, motions – the list goes on and on. Hopefully, these things will be resolved at some point. But the most important thing when all is said and done is that the children of the marriage are emotionally and mentally unharmed and continue to have a good relationship with both parents. 

 Without reciting the whole article, I thought I would make some observations about the matters I have handled. One thing I often see in a divorce is when a parent begins to treat their child like a friend.  Parents going through a divorce should not tell their child the intimate details of the divorce as if they are an adult. Divorce is an adult matter. Parents should avoid discussing the legal intricacies of a divorce with their child. It is important to explain to the child that you will be living apart and that both parents still love the child and it’s not the child’s fault. But there is no need to explain who will be receiving the retirement accounts or how much alimony will be paid.

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During the course of a litigation where children are involved, the parties will often come to an agreement as to custody and parenting time.  By settling on this understandably emotional issue, the parties avoid having to go to trial, where the trial judge would have decided for them who has custody and what the parenting time schedule will be.  Depending on when settlement occurs during the course of the litigation, the time and expense of obtaining a custody evaluation, which involves the children in the process as well, may also be avoided. 

However, oftentimes after settling the issue and coming to an agreement, one or both parents will change their minds about what they just entered into for whatever the reason may be.  He or she wants to change the agreement or simple rescind on its terms.  We are actually involved in a litigation where the parties agreed to a holiday parenting time schedule with a parenting coordinator, the Court subsequently entered the terms of the Agreement in an Order, and the husband is still trying to back away from the agreement, having just filed a motion with the Court and leaving our client with no choice but to incur legal fees to respond.

The question then becomes, can they change the schedule so easily if they want to?  The simple answer is no.  A parent seeking a modification of a custody and parenting time agreement must show changed circumstances from when the agreement was made that the agreement is now not in the best interests of the children.

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THE HOLIDAYS.   For some people, the holidays are a joyous, festive, and happy time of the year - filled with family, friends, and well wishes.   For the rest of us, the holidays are stressful, hectic, and at times depressing.  Another year has come and gone - little has changed. I am a year older.  I have not lost those 20 pounds I swore I would lose at the beginning of the year - and now I have to lose that 20 plus an additional 15!  Ahh yes..... the holidays. 

For those people on the midst of a divorce these feelings can be exacerbated and even compounded further when children are involved.   During a divorce or immediately following, will be the first time children and both parents are not celebrating the holidays together.  Old traditions may be broken.  No longer will certain in-laws be seen, some you may have actually liked.  This can be hard on everyone involved, especially the children.

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Last week, I authored and released a Family Law Alert regarding the new Guidelines for Child Custody Evaluations in Family Law Proceedings issued by the American Psychological Association Issues. To view a PDF version of the alert, click here.  The full text of the alert is as follows:

The American Psychological Association (APA) notes that parties resolve child custody issues amongst themselves in 90 percent of the cases. When parties cannot resolve custody and visitation issues (called “parenting time” in New Jersey) amongst themselves or after a court’s early intervention program, the next step is to have a child custody evaluation performed by a forensic psychologist. In some cases, the court will appoint this expert. In others, the parties may agree upon a joint expert. In bitterly contested cases, parties often have their own custody expert - and there may also be a court appointed expert.

In 1994, the APA developed Guidelines for Child Custody Evaluations in Divorce Proceedings. The APA issued updated guidelines effective February 21, 2009, which are effective for the next 10 years. These Guidelines consist of 14 individual guidelines that are meant to be aspirational in nature, and not mandatory. Rather, the Guidelines are intended to facilitate the continued systematic development of the profession and a high level of practice by psychologists. The Guidelines were not intended to be exhaustive nor replace the judgment of the psychologist. That said, they provide fodder for cross-examination during a custody trial if the expert is not aware of the Guidelines and/or fails to follow them. A rationale and application is provided for each of the following 14 Guidelines:

1.  The purpose of the evaluation is to assist in determining the psychological best interests of the child. Since the ultimate standard in deciding a custody case is “the best interests of the children,” the Guidelines reinforce that the psychologist should be focusing on the psychological best interests of the children, which is what the Court expects. The Guidelines encourage the expert to weigh and incorporate family dynamics and interactions; cultural and environmental variables; relevant challenges and aptitudes for all examined parties; and the child’s educational, physical and psychological needs.

Litigants going through the process of a custody evaluation should provide the expert with all relevant information regarding these factors. In reviewing the expert report, make sure that the expert has addressed them all. If it is your own expert, you may want to inquire why these issues are not included. If it is a neutral or adverse expert, it is a potential issue to be raised on cross examination. With the neutral expert, you may not want to wait until trial. If any of these factors are important enough to impact the final recommendation, you may want to ask the expert to reconsider his or her recommendation in light of this information.
 

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled "A Test of Character And A Savings In Cost." To read the post, click here.

Unfortunately, the scenario Mark wrote about is all too common in divorce cases.  Parents often put their children in the middle of financial issues.  How many times to do we hear, as I did as the child of divorce, to "ask your father for it."  Or "I have no money", "I can't afford it, ask your father" or worse yet "your father doesn't give me enough money for this."  I am sure that there are other variations or permutations.  What about when a parent expects to exercise their parenting time (visitation) on the regular days, but there are parties, outings, events, etc. planned for that time.  Does that parent become the bad guy when the child can't go?  Can the other parent do something to make it "alright" for the child to miss an event or do they inflame things by saying "it's your father's fault you cannot go." 

Sadly, these things are typical in divorces.  The people who do it (divorce) right, try to limit this.  The ones that don't risk doing damage to their kids and running up their legal fees.  At the worst end of the spectrum, the conduct can result in parental alienation.

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Jane Lessner,  a partner in our Philadelphia office and a contributor to our Pennsylvania Family Law Blog, wrote an excellent post entitled "MERRY ????? HAPPY????? HOLIDAY????" To view the full post, click here.

The point of the post, put much better by Jane than me, is that parents should not ruin the holidays for the children because of their hostility and selfishness.  We see it all of the time.  Motions or Orders to Show Cause (emergent applications) to resolve holidays.  The more parents can cooperate put conflict aside for their children, the better adjusted the children will be. 

Jennifer Weisberg Milner from our Princeton office wrote on this topic last year.  To read her Alert, click here.

Aside from being civil at the holidays, parents should also be civil at events where they will both be present (i.e. graduations, dance recitals, sporting events, bar mitzvahs, communions, confirmations, etc.)  If not, every future happy event could be filled with trepidation if not dread, wondering what the parents will do to ruin the child's happy day. 

Hopefully, parents will remember to put the children's best interests first at the holidays and always.

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Over the years, judges began to make numerous appointments to attempt to, if not rid the courts, at least create a buffer for parenting and visitation issues that arose daily/weekly/monthly in high conflict divorce and post-divorce matters.  Sometimes the professional was called a parent coordinator, other times it was a therapeutic monitor, a mediator, a parenting coach, etc.  The role was generally the same, that is, to present these issues to a neutral third party that had either a legal or mental health background, or both, to assist the parties work out the differences and in many instances, make recommendations if they could not. 

These appointments were being done even though there was no specific authority for the appointments in the Court Rules or statutes.  In April of 2007, the Supreme Court started a parent coordinator pilot program in four vicinages, Morris/Sussex, Bergen, Middlesex and Union. To see the Notice from the Supreme Court and the standard form of parent coordinator Order, click here.

The Court saw the program to serve the following purpose:  "A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.  The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development."

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In a recent trial court opinion issued by the Superior Court in Hudson County, Judge Gallipoli recognized that parents in NJ may have a right to collect damages for intentional infliction of emotional distress when their relationships with their children are poisoned by former spouses or even grandparents who partake in alienating behaviors. 

In a November 21, 2008 trial court decision, the court recognized the right of one parent to sue another, as well as grandparents, for what is known as the intentional infliction of emotional distress.  In this particular case, the father sued the mother and maternal grandparents because they had alleged that the father sexually abused the children.  The suit alleges that the ex-wife and her parents began alienating the children from the father during the pre-divorce separation in 2006. The defendants allegedly told the children, court-appointed psychiatrists and law enforcement officials that the father was a sex addict and had molested the children in the past, the suit says.  It also says the children are afraid to sleep at their father's home because they have been told they are in danger of being sexually abused.

The wife and her parents denied the allegations and argued in motions to dismiss the suit for failure to state a claim that the Heart Balm Act had eliminated the cause of action of alienation of affection. They argued that the term "alienating the children" is what the complaint calls the alleged wrong.  Judge Gallipoli found that this claim was not a disguised claim for alienation of affections, which was banned in the state in 1935 by what is referred to as the Heart Balm Act.

This is the first time that a NJ Court has recognized the ability to bring such a claim.  A prior suit  was filed in the Morris County Superior Court but dismissed by Judge Rand on the grounds that the suit was nothing more than a disguised claim for alienation of affections.  Noting Judge Rand's opinion in his own, Judge Gallipoli respectfully disagreed with Judge Rand's interpretation of the decisional law in this state and found that a claim existed for these types of behaviors.  Since they are both trial court judges, Judge Rand's opinion was not binding upon Judge Gallipoli.  Judge Gallipoli noted that the father would have to file an application in the family part seeking relief, however his claims against the maternal grandparents would proceed in the law division.

The real question remains as to how the Appellate Division and perhaps even the state Supreme Court will view claims such as these. 

EDITOR'S NOTE:  It seems contrary to notions of judicial economy, mandatory joiner and the entire controversy doctrine that the claims against the mother and her parents would be handled in separate venues. In addition, while there is precedent to bring tort actions related to a divorce in the family part, a party may have a right to a jury on these issues and the cases are often severed and sent back to the law division anyway. 

The bigger question is how a court should handle these claims in a post-judgment situation where there is not an ongoing matter and ultimate trial date pending.  While court's can order plenary hearings post-judgment, it seems that when these issues arise post judgment, the better place for them may be in the law division. 

Also, the theory here that makes the claim viable is not that there has been an alienation of affections, but that a person's intentional act has harmed another, where the only possible remedy for same may be money.   ERIC S. SOLOTOFF

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The issue of sibling visitation does not come up all that often.  However, it comes up often enough for there to be a statute that addresses it.  In fact, it is part of the same statute that provides for grandparent visitation.  The statute (N.J.S.A. 9:2-7.1) provides, in part,  that:  " A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best
interests of the child. The statute then provides a list of 8 factors for a court to consider.

Subsequent to the enactment of that statute, the US Supreme Court  in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), and the NJ Supreme Court in Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004) issued opinions regarding third party visitation statutes in the context of grandparent visitation. In light of the decision is Troxel which struck down Washington's grandparent visitation statute,  the Court in Moriarty construed the NJ statute to require grandparents, when the parents refused visitation, to demonstrate by the preponderance of the evidence that such visitation was "necessary to avoid harm to the child."  I know a little bit about the Moriarty  case as I wrote the Petition for Certification in that matter.

The issue of sibling visitation was addressed in an unreported case released on November 6, 2008 entitled T.R. v. L.R. To see the full text of the case, click here.

This is a sad case which involved domestic violence, allegations of abuse and estrangement between parent and child.   In this case, an older sister filed an application to intervene in her parents' divorce case , seeking visitation with her younger sister.  In this case, the trial court applied the same standards as it would to a grandparent visitation case. The daughter appealed on the basis that the Troxel/Moriarty analysis applied only to grandparents and not to siblings because the nature of the relationship is different. 

The Appellate Division never decided that issue in affirming the trial court decision because it said that they were unable to conclude that the trial court abused its discretion when it denied the motion for visitation. 

The decision is interesting because the Court also noted other judicial authority which commented on importance of sibling relationships.  That said, given the facts of this case, the judge never had to reach that issue.

However, given the constitutional questions addressed in Troxel/Moriarty it appears likely that an analysis under those cases will necessarily be required in future sibling visitation cases. 

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Jane Lessner, a partner in our Philadelphia office, wrote an excellent post entitled "What to Tell Your Custody Lawyer" on the firm's Pennsylvania Family Law  blog.

To read the full text of Jane's Blog entry, click here.

EDITOR'S NOTE:  Previously I blogged on "How to Prepare for a Custody Evaluation."  To view that post, click here.  We also have many other posts and custody and visitation/parenting time issue which can be viewed by clicking on the proper link under the "Topics" menu on the right side of the blog page.    Since we update our blog several times per week,  please check back often  for new entries.  Eric S. Solotoff

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What happens after a divorce when two parents cannot seem to agree on parenting time or nearly anything else related to their child(ren)?  Individuals often going through a divorce will ask, "How much longer do I have to deal with him/her?"  When children are involved, the real answer is forever!

While a marriage may not always last forever, the job of being a parent does.  One of the hardest things that a person can face during a divorce (and after) is negotiating and navigating the pitfalls that can often occur when parents are forced to see their former spouse's when dropping off or picking up the child(ren) of the marriage.  Too often parents cannot put their differences aside and act in the “best interest of the child(ren)”,  which includes communicating with the child’s other parent.  In order to facilitate those difficult relationships judges will often appoint a parenting coordinator (a neutral third party, often a therapist) to help facilitate a schedule that can work for both parents, while acting in the “best interest of the child.”

In the recent unpublished appellate decision Menzel v. Davis, the parties exemplify the bad conduct that can occur when parents  cannot agree on a post-divorce parenting schedule.  Menzel traces four years of discord and court proceedings between the parents of a seven year old child (yes – the parties have a minimum of another 11 years to deal with one another).  The nexus of the problem is that the parents cannot agree on a schedule and each time they see one another an incident occurs.  In order to minimize the harm to the child, the court appointed parenting coordinator reduced the amount of contact and transfers by changing the parenting schedule.  Dad was unhappy with the new schedule proposed by the parenting coordinator.  In any event, the trial judge subsequently incorporated the parenting coordinator's recommendations.  Dad then appealed the judge’s decision, alleging that the judge delegated its authority to the parenting coordinator and failed to conduct a “plenary hearing” on the matter.   The Appellate Court denied dad's application, holding that the trial court properly applied the "best interests of the child" standard considering the parties' history of conflict and inability to agree.

This case is an example of how parties in a divorce should conduct themselves.  It is sound advice to clients that it is imperative to act in the best interest of the child(ren) at all times, especially when interaction with your “ex” cannot be avoided.   A court is always going to look at how the parties interact with one another when it comes to the child(ren) and clients should always take the high road, no matter how difficult.  If parties cannot make parenting decisions, including scheduling amongst themselves, the judge has discretion to make these decisions for them or appoint a parent coordinator to make recommendations.  Thus, when clients take the high road they are not only helping their child deal with divorce better but they are also helping themselves.

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Just recently a judge in New Zealand declared a 9 year old girl a ward of the court so that he could change her name during her parents' custody battle.  The Judge stated that by naming their child "Tulula does the Hula from Hawaii" the parents "made [sic] a fool of the child and set [sic] her up with a social disability and handicap, unnecessarily." 

In New Jersey, our highest court has said that in contested cases there is a strong presumption that the surname selected for a child by the custodial parent is consistent with the child's best interest.  This presumption may be rebutted by evidence which shows that a different surname would better serve child's best interest.  However, the noncustodial parent bears the burden of demonstrating, by a preponderance of the evidence, that the chosen surname is not in the best interests of child. 

The New Jersey case centered around a father who went to the court in an attempt to have the child's surname changed to match that of his own.  This happened after the fact as the parents of this child were not wed and initially, the father contested paternity of the child.  Historically, the societal norm has been that children bear the surname of their father.  "The practice of children assuming the father's surname is traceable to the English medieval property system in which the husband controlled all marital property.  That preference continued in America, reflecting not only the long-standing English tradition but also the societal distinctions in the status of men and women.  Until the latter part of this century, the assumption that children would bear their father's surnames was a matter of common understanding and the preference for paternal surnames was rarely challenged.  But the historical justifications that once supported a tradition in the law for children to bear paternal surnames have been overtaken by society's recognition of full legal equality for women, an equality that is incompatible with continued recognition of a presumption that children must bear their father's surname.  That presumption shall no longer apply in this State."  Gubernat v. Deremer, 140 N.J. 120, 122-123 (1995).  In recent years, we have seen a growing change in this trend as more and more children are being given their mother's surname or at times, a combination of both surnames. 

New Jersey courts have not yet attempted to intervene in a parent's personal selection of a name for their child as New Zealand courts have.  However, with the ever increasing trend of 'unique' names seen in our society,  who knows if we are headed in that direction?

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The Appellate Division recently issued a reminder in Ort v. Ort, A-3535-06T1 (App. Div. June 17, 2008) that, unlike a parenting time coordinator, a custody and visitation mediator may only “assist the parties in resolving disputes as to major decisions regarding the children,” and “may not make any recommendation to the court respecting custody or visitation.” 

At issue was a father’s post-judgment motion for a change in the method of delivery of letters, cards and gifts to his eight unemancipated children. During the initial divorce litigation in 2003, the Court had appointed a custody and visitation mediator. After the school attended by one of the children indicated in 2006 that it would longer accept items sent by the father to the child at the child’s school, the father consulted with the previously appointed mediator who, without discussing the matter with either the former wife or children, recommended a neutral site for distribution of the items for all of the unemancipated children. The father filed a motion requesting same, which was denied by the Court. The father than submitted a more detailed letter from the mediator explaining why he recommended the use of a neutral site. After the Trial Court reaffirmed the motion denial on reconsideration, the father filed an appeal based, in part, on the judge’s alleged failure to consider the mediator’s letter.

Affirming the Trial Court’s ruling, the Appellate Division added as a potent afterthought that the Trial Court mistakenly referred to the mediator in rendering its decision as a “parenting coordinator.” The Appellate Division then cogently distinguished a coordinator from a mediator, indicating that the mediator, unlike the coordinator, may not make custody or visitation recommendations to the court. It also made clear that, even if the mediator there was actually a coordinator, that he had not engaged in best practices by making recommendations without having previously consulting with both parents and the attorney for the children.

Ort serves as a refresher on the core principle that a custody and parenting time mediator must try to resolve outstanding issues between the parties by maintaining neutral throughout the course of the mediation process. This is accomplished by ensuring complete confidentiality and instilling in the process a sense of what the Appellate Division has previously referred to as “trust and confidence.” For a mediator to make recommendations as that seen in Ort not only poses an “inherent conflict” by going beyond the bounds of the mediator’s essential role, but it also demonstrates a tainted bias in favor of one party over the other – in other words, exactly what a mediator should not be doing.    

As the Appellate Division said in Isaacson v. Isaacson, 348 N.J. Super. 560, 578 (App. Div. 2002), mediators are “critical to the administration of justice in the Family Part.” The same can obviously be said of parenting coordinators upon whose recommendations judges greatly rely. It is therefore vital that these roles remain separate so that each may perform its own role unclouded by the other’s obligations towards facilitating an effective resolution for the parties involved.

To read the Ort case, click here.

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Judy McIntire Springer, a partner in our Philadelphia office, wrote a terrific post on litigating Hague Convention claims for the Legal Intelligencer Blog.   The link below is to the second part of her article.

The Hague Convention is an international treaty that many countries have ratified, including the United States. The treaty prohibits parents from wrongfully removing and/or retaining a child from his or her home country.

To read the full text of the post, click here.

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Judy McIntire Springer, a partner in our Philadelphia office, wrote a terrific post on litigating Hague Convention claims for the Legal Intelligencer Blog.

The Hague Convention is an international treaty that many countries have ratified, including the United States. The treaty prohibits parents from wrongfully removing and/or retaining a child from his or her home country.

To read the full text of the post, click here.

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Custody evaluations are very important in determining child custody and access during contested divorce proceedings. Divorce courts give considerable weight to the recommendations of the evaluator. In addition, the participates are usually extremely nervous about the process.

As such, before an evaluation, I try to meet with my clients to let them know what to expect.  I also try to give them some basic guidelines as to how to act. 

Below are some guidelines that will assist a person to prepare for your custody evaluation with the expectation of ending your custody battle.

• Arrive on time at your custody evaluation interview.
• Dress neatly and conservatively.
• Be honest. The custody evaluator will likely check out your statements with collaterals and/or other sources.
• If the custody evaluator chooses to use psychological testing, ABSOLUTELY answer honestly. The tests are designed to detect defensiveness and lies and unless you are an expert in psychometric testing, you are unlikely to fool them.
• Be sincere. The custody evaluator can usually detect over embellishment and insincerity.
• It's all right to be nervous; most people are.
• It's all right to cry and/or show emotion; many people do.
• Answer questions directly and to the point.
• Make sure you pay attention to what the evaluator is asking.
• Take your time when answering a question. If you do not understand what is being asked, feel free to ask the evaluator to explain what he/she means.
• If the custody evaluator asks that you provide additional documentation, do so as promptly as possible or communicate any concerns about getting it.
• If you provide the custody evaluator with names of collateral contacts, it is a good idea to inform them in advance that they may be contacted so that they can prepare to speak on your behalf.
• If the custody evaluator is observing you with your child(ren), be attentive to their needs and focus on their interests and not yours.
• Present yourself as being reasonable and placing the concerns of your child(ren) above all.
• Relax and let the best aspects of your personality come out (patience, humor, concern for the child(ren)’s well being, etc.)

The following is a list of things to avoid doing during a custody evaluation
• DO NOT speak badly of your spouse/partner unless the custody evaluator asks you to comment on what you perceive to be the problems between you.
• DO not make threatening comments about your spouse/partner or anyone else to the evaluator.
• DO NOT harass the custody evaluator with phone calls.
• DO NOT drop by the evaluator's office without an appointment.
• DO NOT call the custody evaluator to see if the report is completed.
• DO NOT prep your child(ren) to say negative things about their other parent. The custody evaluator has ways of telling if this has happened.
• Custody evaluators recognize the stress people are under during this process and take this into account when assessing family members.
• If you are feeling stressed and anxious, it is all right to acknowledge it and allow the custody evaluator to help allay some of your concerns.

The following is a list of things that the evaluator is looking for:
• Empathy (the ability to understand what the children are feeling and the willingness to react appropriately)
• Setting appropriate boundaries
• Proper environment and proper care providers
• A loving relationship between you and your child(ren)
• Behavior supportive of the relationship between the child(ren) and the other parent
• Behavior which demonstrates that you are striving to keep the child(ren) insulated from the conflict
• Lack of hostility toward your spouse. (Speak of past problems in a matter-of-fact way, indicating that you these things behind you)

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Charles Meyer, a partner in our Montgomery County, Pennsylvania office, wrote a terrific post on High Conflict Custody matters on the Pennsylvania Family Law Blog that he edits.  The principles in this post apply to New Jersey cases.

To see the post, click here.  To view the Pennsylvania Family Law Blog, click here or at the link to the right of the page. 

I often tell my clients, that though they may wish to stoop to their spouse's level, that it just isn't worth it and certainly not in the children's best interests.  Moreover, if the case is going to be litigated, I want my clients to be "pure as the driven snow" with regard to these issues. 

That said, I think that each client going through a custody case should keep a notebook documenting things as they go on.  Moreover, save and print provocative emails and text messages and make tape recordings of voice mail messages for future use.  As to recordings of conversations, given wiretap and privacy issues, those will be discussed in more detail in a future blog post, and you still must proceed with care. 

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One of my pet peeves is litigants and lawyers that use custody and parenting time issues as a bargaining chip to get better a better financial settlement.  I have several matters ongoing now where that is occurring.

In a recent case, both in negotiations between the parties directly, and in negotiations with opposing counsel, we were told that the proposed resolution of a hotly contested parenting time issue for far less than had been demanded was fine but only as part of a global settlement including the finances.  Put another way, they were only going to resolve visitation if my client made financial concessions.  The bad faith of the tactic was evident.

In fact,  in New Jersey, there is really little interplay between the parenting time and the finances other than some child support adjustments made for the number of overnight visits.  This does not even really come into play in high income cases that exceed the Child Support Guidelines.  That said, since parenting time and custody issues are based upon the best interests of the children, most would agree that you should not negotiate these issues based upon money.  However, it comes up all to frequently, often to the detriment of the children and at a great financial and emotional cost to the parties. 

The system in New Jersey is set up to try to smoke out and resolve these bogus parenting and custody issues early in the case.  At the outset of a case, the parties are required to attend a Parent Education program given by each county.  After that, the parties are required to go to mandatory custody and parenting time mediation, usually with Court staff, unless there is a domestic violence restraining order in effect.  Only then, do you get into custody and parenting evaluations with experts, etc.  Also, this is all completed at the outset of the process, long before discovery is over, and often before it is even started in earnest.

A familiar scenario of the bad faith custody dispute that I have seen a fair amount as of late is as follows:  one parent is the traditional stay at home parent - the other is the Type A executive type that leaves the home at 6 a.m. and doesn't return home until 7 p.m.  Sometimes, that person travels substantially for business as well.  The stay at home parent has been responsible for all medical and dental visits, haircuts, play dates, teacher conferences, etc. The divorce starts and the  parent that works out of the home demands either custody or a 50-50 parenting arrangement. 

In these cases, absent mental health issues or other extraneous circumstances, the demand is one that is typically made either because there are control issues or as a bargaining chip.  That is not to say that there are not times where this parent should not get custody, because there are and I have gotten custody for these types of parents. 

That said, when these issues are made for bargaining, if the matter does not settle in mediation, the next step is custody evaluations by a forensic psychologist. If the parties cannot agree on a joint expert or the Court does not appoint one expert, there can be two experts.  The children are now made part of the process and have to meet with the expert several times.  Their teachers may be contacted.  Their doctors and therapists may be contacted.  The parties' therapists may be contacted.  Other collateral sources may be contacted (neighbors, coaches, family members, etc.)  The price to pay on the family, aside from the legal and expert fees, is high - especially when the issue is for bargaining only.

Don't get me wrong.  I understand that there are good faith custody and parenting disputes that require this process.  While the toll is still the same, that may be unavoidable.  However, if the issue is not a "real" one, I would hope that people would not use it improperly as a bargaining chip.  The collateral damage may be great.

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In an unreported decision of the Appellate Division on April 17, 2008 in the case of Swicinski v. Maul, the Court held that passage of time alone was a sufficient change of circumstance to warrant a modification of the father's parenting time.

In this case, the parties were never married. In 2003, when the child was six weeks old, the Court entered an Order granting the parties joint legal custody, designating the mother as primary residential custodian and granting the father parenting time every Sunday between 10:00 a.m. and 6:00 p.m., and between 6:00 p.m. every Monday through 6:00 p.m. the next day. Because that schedule was cumbersome and involved four round-trips in each three-day period, the parties voluntarily modified that schedule so that father's parenting time would begin on Sunday morning and conclude on Monday at 6:00 p.m.

In 2007, the father sought additional parenting time and it was opposed by the mother.  The trial court granted the additional time and the Appellate Division affirmed. 

The trial court noted and the Appellate Division agreed that  parenting time for an infant should be structured differently than parenting time with a 4-year old and that that alone was a change of circumstancee.  The father also had other changes in his life - a new wife, a new home and greater stability.

The trial court also noted that custody and parenting time issues are always subject to review.  That said, in practce, typically, a change of circumstances is necesseary to obtain a modification. 

What should be taken from this case is that the needs of a child differ depending on their ages.  Parenting time that may be appropriate for an infant or toddler, is not necessarily appropriate for an older child.  As such, just because parenting time is settled does not mean that it can never change with time.  This case confirms a common sense argument many have been making for some time.

For a link to the case, click here.

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