When to seek change of residential custody can be a difficult and costly decision to make. Obviously, when the safety and well-being of a child is in question, efforts must be made by the non-residential parent to seek custody (even if temporary) of the child. In a recent unpublished decision, Gorski v. Young, Appellate Division, Docket No.: A-2707-08T3m, decided January 8, 2010, the Appellate Division affirmed the decision of the trial court, when it decided if a ten-year old boy was in danger with his mother who had residential custody. In this case, Gregory Young filed a motion for a change of residential custody of the parties’ ten-year old son, Brian (fictitious name). Gregory alleged that Brian’s mother, Angel Gorski, was too mentally unstable, which resulted in Brian receiving “tardies” from school and culminated in an alleged suicide attempt by Angel – a fact Angel denied. Gregory’s motion was denied without a plenary hearing.

Gregory appealed and the Appellate Division remanded with an Order for the trial court to conduct a plenary hearing. At the hearing, Gregory presented witnesses and the judge ordered a mental health assessment of the parties and Brian. The assessment was admitted into evidence over Angel’s objections because she did not have an opportunity to cross examine the expert. The trial court judge ruled that notwithstanding the “tardies” and alleged shortcomings of Angel, there was neither a danger to Brian, nor a change of circumstance warranting change of residential custody. Gregory appealed a second time. On appeal the Appellate Division ruled that because of the expertise of family law judges they would not second guess the findings and judge’s sound discretion. The Appellate Division also noted that although harmless error, the parties should have had the opportunity to cross examine the expert’s mental health assessment.

This case exemplifies the tough decisions parents have to make when seeking custody. Unfortunately, even when parties think they are acting in the child’s best interest, a court may see it differently.   That is why it is imperative for an attorney to advise their clients of all the potential outcomes when they go to court for custody issues. Any parent facing this decision must examine it from all aspects and ensure they are utilizing an attorney with knowledge and experience in this area.