Posted on February 27, 2013 by Eric S. Solotoff

HOW CAN THERE BE JOINT LEGAL CUSTODY IF THE PARTIES CANNOT COOPERATE AND REFUSE TO COMMUNICATE?

Early in case where children are involved, we discuss the different types of custody.  There is residential custody - i.e. who the children live with and the resulting parenting time for the other parent. Then there is legal custody which is decision making regarding issues of the health, education, religion and general welfare of the kids.  in 99% of the cases, the parties will share joint legal custody - it is usually a no brainer.  in fact, In the New Jersey Supreme Court’s seminal decision of Beck v. Beck, 86 N.J. 480, 497-501 (1981), the Court stated as follows with regard to whether joint custody should be awarded:

At a minimum both parents must be ‘fit’ that is, physically and psychologically capable of fulfilling the role of parent.

That said, the minimum requirement of joint legal custody is the ability to communicate and cooperate on some basic level as it relates to the best interests of the children.  The Court in Beck further noted:

The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. . . [W]hen the actions of [an uncooperative] parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

Again, in Beck, the Supreme Court of New Jersey has written:

The most troublesome aspect of a joint custody decree is the additional requirement that the parents exhibit the potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to exclude their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Beck v. Beck, 480, 498 (1981).

But every once in a while, we have those cases where there is just no ability to cooperate, and where joint legal custody will be used as a tool of harassment and control.  The case of  Nufrio v. Nufrio, 341 N.J. Super. 548 (App. Div. 2001) was one of those cases.  In that case, the court found that joint legal custody would not be in best interests of child because the parents were un-able to agree, communicate, and cooperate in matters relating to health, safety, and welfare of child.  But there was more to it than that.  The court found:

...Although the judge has provided defendant with significant parenting time with his son, the findings of the judge make it clear that any form of “joint” custody or shared decision-making will be detrimental to the parties' child. The concern that the defendant would use the label of “joint legal custody” as a disguised attempt to harass plaintiff through re-peated applications to the court has support in the record. Such a situation would clearly be detrimental to the best interests of the child.

 

Again, we have all had those cases where there will never be communication and never be cooperation.  What do we do?  What if it is primary custodial parent that refuses to communicate and cooperate?  Is it fair to let that parent's aberrant conduct defeat joint legal custody?  Probably not.  Maybe a parent coordinator can help.  Maybe the answer is to vest decision making in the parent of alternate residence.  However, when it is the parent of alternate residence that refuses to communicate and/or cooperate, some times, sole legal custody may be the only way to go.

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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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Posted on February 19, 2013 by Robert A. Epstein

MOM INSULTS SON ON FACEBOOK - LOSES CUSTODY

There is never a shortage of new and interesting stories involving social media that impact upon our world of family law.  We have previously blogged about what NOT to do online, because there may be a spouse ready and willing to use such online postings, pictures and the like against you in your divorce proceeding. 

Apparently the Mom in the case of Melody M. did not read our blog posts. In a decision from a New York appellate court that garnered enough attention that I first read about it in the New York Daily News, Mom lost legal custody of the children for being mean to her oldest child on Facebook.

The basic facts were relatively straightforward.  The parties entered into a separation agreement in 2006 providing for joint custody of their three children, with "alternating physical placement."  In 2009, the parties stipulated to continuing joint legal custody, with Dad having primary physicla custody and Mom having scheduled parenting time for an evening each week and on weekends during the school year.  In 2010, Mom commenced the first proceeding to increase her parenting time.  Dad opposed the requested modification, and, among other things, sought his own form of modification by requesting that he be granted sole legal custody of the children.

In granting Dad's request for sole legal custody, the Family Court found a change in circumstances based on what it deemed was a "sufficient deterioration in the parties' relationship . . ." In determining what legal custody situation would be in the best interests of the children, the Family Court noted that Mom had engaged in a "pattern of inappropriate behvavior" that had an impact on the oldest child, who happened to also have mental health issues and received counseling. Aside from not participating in the counseling, failing to heed the counselor's recommendations, and often asking Dad to pick up oldest son during her parenting time because she had difficulty in dealing with the child's behavior, Mom also testified to swearing and yelling at the child, as well as using "physical means" towards him.

It is here when the case then took a turn towards the more unusual, as the Family Court also noted that Mom utilized Facebook "to insult and demean the child, who was then 10 years old, by, among other things, calling him an 'a-shole'." Even worse, Mom actually testified "without remorse" that she called her son that expletive on Facebook because that is what "[h]e is" and thought it important for her Facebook friends to know. Encapsulating Mom's testimony, the Court concluded that "charitably stated," Mom's testimony "reflected a lack of insight as to the nature of her conduct toward her oldest child."

The Court even went so far as to impose an Order of Protection against Mom, precluding Mom from posting anything to or about her children.on any social media site, even of a positive nature.

While this case was out of New York, it could certainly apply in New Jersey as well. Mom's conduct here was abhorrent, especially considering the age and mental troubles of the child to whom her postings were directed. It is a simple reminder, though, that anything you do, say, or think online can be used against you in a family law proceeding, whether it be divorce, custody, domestic violence, and the like.

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Robert Epstein is an associate in Fox Rothschild LLP's Family Law Practice Group. Robert practices in the firm's Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com. 
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Posted on June 28, 2010 by Eric S. Solotoff

Appellate Division Reverses Award, Without a Plenary Hearing, of Joint Legal Custody, to Someone Guilty of Domestic Violence

On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court's Order, rendered without a plenary hearing and where there were disputed facts, granting the defendant joint legal custody. 

In this case, the parties were never married. While the plaintiff was pregnant with the parties' child, she obtained a domestic violence final restraining order against the defendant.  Four years had passed and the parties were now in court dealing with emergent custody and parenting time issues.  The defendant's attorney requested that joint legal custody be ordered and plaintiff's attorney objected, contradicting defendant's account of his support of the child and noting defendant's history of drug use.  Plaintiff also noted the FRO, her fear of the defendant and that defendant presented no proof regarding his relationship with the child.  Notwithstanding, the Court issued an Order granting the parties joint legal custody and designating the plaintiff the parent of primary residence.

Plaintiff appealed and the Appellate Division reversed noting that a decision like this, where there was contradictory information presented, required a plenary (evidentiary) hearing.  The Appellate Division also noted that the parties' relationship had been strained for year, as noted by the FRO, and that along with the FRO goes a presumption in favor of awarding custody to the non-abusive parent.  In addition, the Court noted that the plaintiff's fear as well as the defendant's drug use need to be considered at the hearing. 

This case reminds us of two things.  First, court's cannot decide major issues without having plenary hearings if there are material facts in dispute.  Second, court's must be mindful of findings of domestic violence when addressing the issue of custody, including legal custody, considering the statutory presumption of custody favoring the non-abusive parent.  Fundamental to the notion of joint legal custody is the parties' ability to communicate and cooperate which is why a review of the history of domestic violence is so important.

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Posted on July 2, 2009 by Robert A. Epstein

PHYSICAL AND LEGAL CUSTODY DETERMINATIONS - LOOK AT THE FACTS

Custody disputes are often the most emotional part of any divorce litigation.  Determining what the physical and legal custodial arrangement will be is a fact-specific analysis that puts at the forefront the best interests of the child.  While both parents start out with a presumpton of equal rights in a custody proceeding, fostering a child's relationship with both parents is of utmost importance, as is encouraging both parents' involvement in raising the child. 

N.J.S.A. 9:2-4(c) provides for several factors that a trial court must consider in determining whether to award joint custody, sole custody or an alternative that works in the child's best interests.  These factors include, but are not limited to, the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody; and the needs of the child.  The Appellate Division recently addressed these factors in the context of a physical and legal custodial dispute in Elliott v. Prisock-Elliott, decided June 2, 2009. 

For a joint physical and legal custodial arrangement, the New Jersey Supreme Court has held that the children must recognize both parents as sources of "security and love," with a desire to continue both relationships; both parents must be fit and willing to accept custody; and the parents must demonstrate a "potential" for cooperation analyzed outside of the divorce context.  A parent involved in such a dispute should understand, though, that he or she need not have been as involved as the other parent in the child rearing process for joint custody to be appropriate. 

Specifically as to physical custody, a court will also look at those factors focusing on the financial ability of the parents to provide adequate care in two homes; geographic proximity of those homes (looking at interference with schooling, the children's access to friends and relatives, and traveling between the two locations); demands of employment; and the age and number of children involved. 

The New Jersey Supreme Court has determined that, where joint physical custody is not appropriate, the court should consider awarding joint legal custody and physical custody to only one parent with "liberal visitation rights" to the other parent.  This way, both parents keep their decision-making roles as to the children and, as practicable, the non-custodial parent maintains a level of companionship with the child provided by joint physical custody.

Based on these considerations, the Appellate Division in Elliott affirmed the trial court's decision rejecting the father's proposal for joint physical custody, assigning sole physical custody to the mother, since the father failed to provide sufficient evidence regarding the joint physical custody considerations outlined above.  The sole custody arrangement was also deemed to be in the children's best interests since the mother was primarily responsible for the care and development of the children during the marriage and was most familiar and better able to address their medical, educational and social needs.

Interestingly, however, as to trial court's decision granting sole legal custody to the mother, while the Appellate Division affirmed the trial court's conclusion that the parents could not cooperate for the children during the divorce proceedings, it found that the trial court failed to adequately consider the importance of establishing a custodial plan that would maintain and foster the father's relationship with the children. 

Specifically, the Appellate Division noted the trial court's failure to consider years of parental cooperation prior to the divorce proceedings; failure to appreciate in its determination the mother's enrollment of the children in a before-school program that limited the father's parenting time; and the mother's preference for eliminating the father's parenting time entirely where there was evidence of the father abusing the children.  As a result, the Appellate Division remanded to the trial judge on the issue, allowing the parties to submit evidence on the legal custody issue.

As described above, physical and legal custody determinations are highly fact-specific considerations ultimately decided upon a review of the statutory factors, always with the best interests of the child at the heart of any determination.
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