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That said, in the recent unpublished deicion of Cacici v. Gallagher, A-4890-07T1, decided February 25, 2009 the parties had been divorced since 1997.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.
On May 30, 2008 the court heard oral argument on these applications. Ultimately, among other things, the court denied defendant’s application and granted those aspects of plaintiff’s cross application which: 1) gave him primary residential custody; 2) denied defendant’s request for a custody evaluation as she had failed to show a change of circumstances; 3) gave defendant parenting time on a limited basis until she moved closer to plaintiff’s home; 4) ordered both parties and the child to attend counseling; 5) the counselor was to recommend a change (increase) in defendant’s parenting time; 6) plaintiff’s child support obligation was terminated; and 7) defendant’s request to take the child on vacation was denied.
Defendant filed an appeal, Pro Se, arguing that the court made decisions without having any evidence from plaintiff or his counsel. She based, in part, her argument on an allegation that the judge and plaintiff’s attorney participated in an ex parte meeting, to which she was excluded, prior to the oral argument on the motion. The court gave a thorough discussion of how findings of a lower court will only be disturbed if they are “manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.” Cesare v. Cesare, 154 N.J. 394, 412 (1998). The Court found that this allegation was without merit.
In addressing the other aspects of the appeal, the Court gave deference to the findings of the lower court and found that there was substantial credible evidence to show that there was no change of circumstances to disrupt the child’s residential custodial arrangement with plaintiff and the rocky relationship she had with defendant. Defendant had failed to meet her burden of proof to show that a plenary hearing was necessary in that she failed to show that “due to a substantial change in circumstances from the time that the current custody arrangement was established, the best interests of the child would be better served by a transfer in custody.” Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000). Further. R. 5:8-6 which addresses trial of custody issues, states that a court shall set a hearing on the issue of custody when it “finds that the custody of the children is a genuine and substantial issue…”
The Appellate Division did amend the lower court’s Order in that it provided that if defendant relocates within reasonably close proximity of plaintiff and the child, defendant may move for increased visitation without having to demonstrate any change of circumstances other than her move further south.