This post was written by Jessica Goldberg, a new associate in the Family Law Practice Group in the Roseland office and also, a new contributor to this blog.

The recent Appellate Division’s decision in Dunn v. Willis, although unpublished and therefore not precedential, brings up some interesting issues regarding custody disputes. First, it is important to note that when a judge is asked to consider a change in custody, that judge must first find that there has been a change in circumstances warranting further proceedings. In Dunn v. Willis the Judge concluded that the mother, who was seeking custody of her son, had failed to show the necessary changed circumstances. The Appellate Division agreed with the Family Court Judge and within its’ decision a warning can be construed about the dangers of too often involving the Court in family matters.

The history of this case is as follows: Mom, unmarried, had an alcohol abuse problem and although she had stopped drinking by November 2002, she was participating in an inpatient rehabilitation program and the Division of Youth and Family Services was involved with the family. In January 2003 the Court entered a consent order, signed by mom, the child’s maternal grandparents, and the child’s paternal grandparents. This consent order gave custody to the maternal grandparents and visitation rights to the paternal grandparents with the condition that the child’s father not be present during their visitation time. In August of 2003 mom was awarded parenting time with her child. In 2004 mom’s stability begins to become apparent – she is out of rehab, she has a full-time job and she has bought a home near the child’s school. In October 2004 mom makes a motion for a change in custody, but the Court denies this motion. In May 2007 mom gets a bachelors degree in nursing. In December 2007 the Court enters an order increasing mom’s parenting time, however, the Court again denies mom custody. Finally, in April of 2008 mom is awarded joint legal custody with her parents, the child’s maternal grandparents. Another order is entered in June 2008 restricting mom from making unilateral decisions without approval from her parents with whom she shares custody.

Then, in June 2009, mom files a motion, now the subject of this Appellate decision, to obtain custody of her son. By this time mom is working full-time as a nurse and is about to receive her Masters Degree in nursing. Her relationship with the child’s father has improved to the point where they are communicating and the child is building a relationship with his father and the father’s younger son. During this entire time the child has lived with his maternal grandparents and an older half-sister, however, the half-sister is now going off to college and mom asserts that the child, now eleven years old, wants to live with her. The Court, however, denies mom’s request to interview the child or appoint an expert to evaluate whether a change would be in the child’s best interest. The Court denies mom’s motion on the grounds that mom has failed to show the necessary changed circumstances.

The Appellate Court, in affirming the Judge’s decision, points out that the Judge who addressed the Custody issue in 2009 had also entered the orders in December 2007 and June 2008. The Appellate Court states that “[the circumstances relevant on this application were only those that had changed since April 2008” when mom was awarded joint legal custody. The Appellate Court highlights that mom’s success and progress from the circumstances that surrounded her family in 2003, when her parents were awarded custody of her son, were all known in 2008 when she received joint custody. Therefore, all of moms’ progress cannot be considered in 2009. When we look at the facts of this case from 2003 through 2009 we see substantial changes – mom went from a parent with an alcohol problem in an inpatient rehabilitation program to a homeowner with a full-time nursing job on the verge of receiving a Master’s degree. When the case is considered from 2008 to 2009, however, as the Family Court Judge considered it, there are very few changes in circumstance.

This case can be viewed as a warning about litigating a matter too frequently. This child had been living with grandparents for a long time and it is not clear from the facts that it would have been in his best interest to go and live with mom. If, however, the Court had not been so involved through out the years and if the Judge had been looking at the facts for the first time in 2009 since the initial consent order in 2003, it is safe to say that he would have at least found a significant change in circumstances and, at the very least, he would have been compelled to proceed with an investigation into the custody matter – interview the child, appoint an expert, etc. I concede that it is difficult to stay out of Court when the Division of Youth and Family Services is involved.  But there is a lesson here for any party getting involved in a custody matter. A party should be careful about how many times they file a motion and ask the Courts to review the facts of their case. If a party has designs about seeking major changes in a parenting plan or custodial situation in the future, a party should be careful about entering into a consent order for small changes.  They should be wary of baby steps, because each time a Court enters an order, whether by consent or otherwise, those facts and that time period become the circumstances and point in history a judge will look to first when asked to consider the matter again.
 

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