Oftentimes, issues of custody and parenting time are the most difficult and sensitive decisions that a judge in the family part must make. It involves deliberation of the ever-elusive “best interests of the child” – a question with no right or wrong answers. While the standard is ostensibly subjective, there are certain guideposts that a judge must look to in order make the difficult determinations that come along with issues of custody. Those factors, as set forth in N.J.S.A. 9:2-4(c), include: 

  1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
  2. The parents’ willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse;
  3. The interactions and relationship of the child with its parents and siblings;
  4. Any history of domestic violence;
  5. The safety of the child and the safety of either parent from physical abuse by the other parent;
  6. The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision;
  7. The needs of the child;
  8. The stability of the home environment offered;
  9. The quality and continuity of the child’s education;
  10. The fitness of the parents;
  11. The geographical proximity of the parents’ homes;
  12. The extent and quality of the time spent with child prior to or subsequent to the separation;
  13. The parents’ employment responsibilities;
  14. The age and number of children.

As can be seen in the recent case of Vidal v. Gelak (an unreported/non-precedential decision), when judges do not examine these all-important factors, their decisions face reversal and remand on appeal. 

In Vidal, the parties were divorced in 2005, when their child was two years old. Their settlement agreement provided for joint legal custody of their son, with the father having parenting time from Saturday at 9:00 AM until Tuesday at 8:00 AM, and the mother had parenting time from Tuesday at 8:00 AM until Saturday at 9:00 AM. At the time of the divorce, the father was off from work on Saturdays, Sundays, Mondays and alternating Tuesdays; the mother’s days off were Wednesdays and Thursdays. Thus, the parenting schedule at the time allowed each party to maximize time with the child.


When the child was entering third grade, the mother brought a motion seeking, among other things, to modify the father’s parenting time to alternate Saturdays at 9:00 AM until Sunday at 5:00 PM as well as a non-overnight visit during the week. The mother alleged that the father’s visitation was disruptive for their son to go back and forth between residences, which were an hour apart. In addition, the father’s work schedule changed, such that he now worked on Mondays and could no longer spend the day with the child and the child did not like spending time with his stepmother. Also, because the schedule afforded the mother with no weekend time, she stated that the child was missing out on important social activities and resented not being able to spend time with his friends. The father disputed all of the mother’s allegations, claiming that he was more than accommodating in allowing the child to attend special events. He also made the pint that because he now worked from Monday through Friday, 2:30 PM to 11:30 PM, he would not be able to enjoy additional weeknight parenting time in lieu of Saturdays.


In court, the mother’s attorney requested that the parties be ordered to attend mediation to resolve their parenting differences, and in the event that failed, requested that the court hold a plenary hearing on the issue. It was also requested that the child be interviewed as to his preferences. The father’s counsel argued that the mother had not submitted evidence sufficient to establish a change of parenting time, and there was no professional speaking on the child’s behalf stating that he did not want to spend the scheduled time with his father. He also opposed an interview of the child by the judge.


The motion judge denied the mother’s application for a change in parenting time, reasoning that there had not been a showing of a substantial change of circumstances affecting the welfare of the child such that it is appropriate to review custody. While the motion judge acknowledged that there had been substantial changes to the family since the time of the divorce, the court did not find that the changes were affecting the welfare of the child, who was on honor roll and attending school regularly, without any instances of tardiness. He reasoned, therefore, that traveling back and forth did not affect the child substantially so as to warrant a change in the visitation schedule. The mother appealed.


The Appellate Division began by stating the applicable law in New Jersey with regard to the modification of a visitation schedule – namely, the party requesting the modification must make a showing that circumstances have changed such that the agreement is no longer in the best interests of the child. This issue involves a two-step inquiry:


The party seeking a modification must first make a prima facie….showing that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[ ]…Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts. Indeed, when a genuine and substantial issue concerning parenting time exists, the court is required to refer the case to mediation….


The Appellate Division recognized that while the parties’ son was doing well in school and has not manifested any overt detriment as a result of the parenting time schedule, there were certain undisputed facts that would require the parties to attend mediation or the court to order a plenary hearing in accordance with the factors set forth in the statute (N.J.S.A. 9-2:4(c)). The reason for the was most obviously because the child had grown older and the parties’ employment responsibilities had changed. There was also no evidence of the child’s preference because the trial court did not interview the child. The Appellate Division further appeared uncomfortable with the trial court’s “wait and see” approach with regard to any consequential harm to the child as a result of the changes. As a result, the Court reversed the trial court’s decision and remanded the matter back to the trial court for further proceedings consistent with the Appellate Division’s opinion.