NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

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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