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

Last week we blogged about a recent unreported Appellate Division case where I was the attorney for the winning party at trial and on appeal.  To view the prior post, click here - to view the Appellate Division opinion, click here.  In last week's post, I blogged about the importance of credibility.  There were other interesting parts of the decision.

In this case, the parties agreed that they would have joint legal custody but that the wife would have the children about 60% of the overnights.  The husband, however, in what we deemed a game of semantics, would not agree that the wife was the Parent of Primary Residence (PPR), though by definition, since she had the children more than 50% of the time, she was the PPR.  There is case law that says that the PPR has final say if parents deadlock on major decisions for the children.  Despite this being the law, this was an unresolved issue at trial.  The trial court essentially acknowledged the law.  The husband appealed claiming that the custody agreement was modified.

The Appellate Division held:

Defendant initially argues that the trial court erred in "setting aside material portions of the Consent Judgment to elevate plaintiff's decision-making authority" respecting the parties' two children. We disagree.
This was a bitterly contested divorce as evidenced by the extent of the record and the expense of the litigation. The court recognized that the parties "dispute[d] how to make decisions related to their children" and "recognized the parent of primary residence to be the parent in the better position to make those decisions." The court held that as "primary caretaker," plaintiff "shall decide in the best interest of the children their medical needs and treatment, schooling, expenses, and even religious instruction" because it was not in the children's interest to "be in the middle of parental conflict" when decisions concerning their welfare needed to be made. The court left intact the parties' agreement to "confer on all important matters concerning the children's health, education and general well being" and to use a mediator to resolve disputes that might arise concerning the children. The court concluded that "[t]he parties shall be bound by the terms of their consent judgment fixing custody and parenting time subject to the plaintiff's authority as parent of primary residence." With respect to extraordinary medical treatment, the parties were to consult each other in advance, except in cases of emergency, and "[n]either party shall unreasonably withhold consent."

We agree that the trial court's modification of the parties' consent judgment is in the children's best interest, considering the hostility between the parties. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Should the parties come to a resolution of their hostilities and be able to deal reasonably with each other regarding the children, they may seek to amend the judgment in respect of the custody provisions pursuant to N.J.S.A. 2A:34-23. In the meantime, irrespective of the parties' agreement, the court properly exercised its "supervisory jurisdiction as parens patriae," in the children's best interests. Sheehan v. Sheehan, 38 N.J. Super. 120, 125 (App. Div. 1955).

To the extent that parenting agreements are unclear, or there is a dispute as to what joint legal custody means, this case provides some guidance.

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There are times when litigants, without first seeking the advice of an attorney or at times, disregarding the advice of counsel, will file, on their own, motions to the court seeking to change or modify certain aspects of a previously entered agreement reached in resolution of a divorce proceeding or order entered by a court.  For example, an application seeking to change the custodial arrangement for a child.  Certainly individuals have open access to the courts and can choose to represent themselves in court in any type of proceeding.  However, this may not always be the best choice without first knowing, understanding and appreciating the ramifications of the action.

That said, in the recent unpublished deicion of Cacici v. Gallagher, A-4890-07T1, decided February 25, 2009 the parties had been divorced since 1997.  They had previously agreed to joint legal custody of their child and the defendant was designated primary residential parent.  This lasted for some time with plaintiff enjoying liberal visitation with the child.  Initially, after the divorce, the parties got along amicably and had a high level of communication with regards to issues involving their child.

In 2006, defendant was diagnosed with stage-four cancer and underwent surgery.  As a result of her serious illness, she was unable to care for the child and other issues related to the child emerged.  Plaintiff took residential custody of the child and on February 15, 2007, he was granted temporary residential custody of the child due to her difficulties in dealing with defendant's illness.  The child was having documented difficulties in dealing with her mother's illness that affected her school work, her moods, her personality, etc.  These changes were noted by the school's counselors and the child's therapist along with plaintiff.

In 2008, defendant filed, Pro Se (representing herself) an emergent application requesting additional parenting time with the child, alleging that plaintiff was alienating the child and that plaintiff would not allow the child to attend a pre-planned vacation with her  This application was denied and converted into a motion. Plaintiff filed a cross motion alleging several infractions of the parties' Property Settlement Agreement and requesting a denial of defendant's requests regarding parenting time and custody issues. 

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So often I hear this statement from a client in a case in which custody is an issue. The next question is usually, “can my child tell the judge what he (or she) wants? The answer to that question is a definite maybe. 

The New Jersey Court Rule 5:8-6 provides that when a court finds that custody of a child is a bona fide issue, the Court may, at the request of a party, or on its own, conduct an interview of the child. This interview is to be conducted in camera, which means the child will be alone with the judge for the interview. Although the interview is conducted by the judge alone with the child without the parents or the attorneys present, it is done on the record, meaning the entire interview is recorded, and the parties are entitled to a copy of the transcript of the interview. Additionally, counsel for the parties must be permitted to submit questions to be asked of the children ahead of the interview. If the Court decides not to ask that questions that have been submitted, the judge must tell the party submitting the question the reason for the decision not to ask the question.

The current rule is a change from the prior rule which had mandated an interview when custody was an issue. However, in 2002, the rule was changed to make the interview discretionary. In the event that a judge decides not to conduct an interview, the judge must place its reasons for not doing so in the record.

Judges often have good reason for not wanting to conduct an interview. Sometimes it may have to do with the particular facts of a case, when, for example, a judge feels that he or she has enough information and an interview may be unduly stressful to the child. Other times, the court may feel that a child is too young to be able to provide accurate information, or that the child is being influenced by one or the other parent and the wishes expressed may not be valid.

On the other hand, some judges simply do not feel comfortable with the interview process. In one case, Mackowski v. Mackowski, 317 N.J. Super. ( App.Div. 1998), one of the Appellate Division judges stated that he believed that judicial interviews of children were in fact harmful to the child and actually had a risk of being destructive to parent-child relationships. He thoughtfully expressed his belief that no matter how sensitive a judge tries to be, there is nothing that judge can do to convince the child that he or she is not responsible for the ultimate outcome of the case.   In his comments, Judge Kestin noted his belief that it is far better to leave the job of an interview to a mental health professional who has years of professional training and experience.  

Certainly, there will be cases in which it is appropriate to have a court conduct an interview of a child in connection with a custody dispute. However, Judge Kestin’s insightful comments are ones which all attorneys and litigants should keeping mind when experiencing that automatic impulse to ask a judge to conduct an interview with a child.    

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