War of the Roses style divorces do not just involved money.  Very often, they involve disputes regarding the children, pick up and drop off, inflexibility regarding changes to schedules, etc.  Is the proper remedy to reduce the amount of parenting time one party has to reduce the exchanges and thus reduce the change for conflict? As noted in the unreported (non-precedential) opinion in the case of Weiss v. Weiss, decided on November 24, 2010, one trial court said yes – the Appellate Division said no.  The Court reaffirmed that parenting time cannot be modified without a plenary hearing.

In this case, during the divorce, the parties had a noted child custody expert conduct a custody evaluation which was implemented, as were post divorce recommendations by that expert.  Apparently, due to the high conflict in the case, there was also a parent coordinator involved.  The expert had crafted a schedule such that the children never went more than 4 days without seeing their father. 

However, much conflict continued and much post-judgment litigation ensued.  The mother, who the father alleged was causing the problems, asked that the court change the parenting schedule causing a reduction in the parenting time the father enjoyed.  This reduction was contradictory to the expert’s opinion and was not recommended by the parent coordinator either.

A seemingly frustrated trial judge held as follows:

In ruling, the trial court explained the case was "unbelievably contentious," and the motion practice was "all out of proportion" and "taking up an incredible amount of court
time." Deciding that an expert was not needed to explain that the mid-week drop-off and pick-up situation was causing extensive strife with the children, the court concluded the
present situation was "totally unworkable." Acknowledging that the "therapist" may have made other suggestions, the trial court rejected such suggestions as unworkable because the parties could not get along. Consequently, the trial court modified defendant’s parenting schedule. When defendant complained the court was "taking time from the children with their father," the court replied, "That’s right, I am[] [b]ecause the parents are so litigious."

The Appellate Division rejected this ruling, holding that:

Where the parties’ certifications are conflicting, and where a proposed modification to a parenting schedule partially contradicts the "best interests" opinion of the sole parenting
time expert, a plenary hearing before reducing parenting time will usually be required. In light of those considerations, a plenary hearing should have been conducted.

Here, the children’s best interests won out over simply reducing the possibility of litigation.  In addition, if the mother really was the cause of more of the strife, it would seem unfair to reward her and reduce the father’s parenting time to avoid the conflict that she alleged created.

3 Responses to Just Because Parties are Litigious and Cannot Get Along Does Not Mean Parenting Time Can be Altered

I am so tired of hearing about a parent’s right to be with their children, as if that should be the priority over a child’s right to peace and emotional health. There but for the grace of God go I….but seriously, I feel like shaking these parents sometimes. Selfishness and entitlement really seem to cloud their judgment and ability to tap into thier empathy for their own child. Their obsession with “my rights as a parent” prevent them from truly seeing thier actions and contention through the eyes of their own children. Loving your children does not equal good parenting! Of course the child would benefit from spending quality time with both parents. But not at the expense of their mental health and need for stability. Good call Judge.

Here in California the parties seeking a change in custody or visitation must show a change in circumstances. It generally must be something more than just the other spouse is “a ba person.” Of course, if the “bad person” argument is coupled with behavior that impacts the best interest of the child, then a court may be persuaded by it.

It seems to me that if parenting time is going to be changed because parents cannot get along, thus making it a hardship on the children, then it’s not in a parents best interest to get along, is it? Not if they are actually being rewarded for their bad behavior. Parents like these should be forced to take parenting classes and sit through counseling sessions which they have to pay for until they figure out how to get along. Rewarding them by giving them more parenting time is not only a huge mistake, but actually ridiculous, and one that only serves to hurt the children even more. Maybe I’m confused at what I read, but this decision seems to be just another example of a system that is truly broken.

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