One of the most difficult concepts related to custody and parenting time issues is the “change in circumstances” concept when a modification of custody or parenting time is being sought. We have blogged many times on the legal analysis the Court must complete in determining a party’s request to modify custody and parenting time. Legally speaking, custodial arrangements and parenting time may be modified on a showing of a change in circumstances sufficient to warrant an adjustment in the best interest of the child. However, in every day life, there are always changed circumstances especially if you are a parent with growing children. After all, people do not live their lives like robots and do the same things day after day. This is what makes the concept difficult. It is difficult for parents, attorneys and even judges.
In the recent decision of the New Jersey Appellate Division Ferstenfeld v. Ferstenfeld, the appellate division found that the trial court entered an Order granting a father’s application for a modification of supervised parenting time on what the appellate division indicated was a mistaken assumption about the basis for the Order being modified. In the Fernstenfeld case, the father had supervised parenting time because he suffered from seizures and because his ability to care for the child were affected by his medical condition. After being seizure free for over a year, the father sought a modification of supervised parenting time asserting that being seizure free was a change in circumstances warranting review of parenting time. The mother opposed the application asserting that despite being seizure-free, the father was nonetheless incapable of caring for the child and sought an order modifying the joint custody designation to a sole custody designation. The trial court accepted the father’s argument and granted his request. The trial court did not address the mother’s request for sole custody. The appellate division found that the court should have also considered whether or not there was a change in the father’s capacity to care for the child, regardless of being seizure-free, warranting a relaxation of supervised parenting time or warranting a change between joint and sole custody.
Clearly, when analyzing whether or not a change of circumstance exists to warrant a review and modification of parenting time, the fact that one change of circumstance exists does not automatically permit a modification. All circumstances as existing at the time an Order is entered must be compared to the circumstances present at the time of the application.
The change in circumstance concept is difficult not because it takes a rocket scientist to complete the analysis. It is difficult because people encounter changes in their lives constantly. In the context of a modification of custody and parenting time, the hard part is picking and choosing those change in circumstances to present to a Court that will warrant a modification in the best interest of the child.