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As can be seen in the recent case of Vidal v. Gelak (an unreported/non-precedential decision), when judges do not examine these all-important factors, their decisions face reversal and remand on appeal.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

3 Responses to In Change of Custody Cases, Best Interest Standard is King

What I see over and over again, is that once a father is in a situation with a mother who uses the court to take control of the parenting role, he will always be forced to take one step forward and 10 steps back, constantly having to prove his right to be a parent. This basic human right is something that is automatically granted to the mother, just by the simple fact of being a mother, and the “best interest of the child” seems in most cases to really be in “bsst interest of the mother.” Unfortunately the father in these cases will always be at the whim of the primary caregiver — again usually the mother — whether it makes sense or not, & whether the law agrees or not.

As the grandmother of a two year old boy who’s mother has been granted the role of primary caregiver by the courts — even though in every way except for gender these parents are the same and even though my son has been fighting for an equal parenting role since before the baby was born — I am constantly amazed and astounded how easily manipulated the family court system is, snd how antiquated the laws are, with the cards being in the mother’s favor 9 times out of 10. In these situations the child doesn’t win, but the mother does. As a women’s right advocate it’s been a real eyeopener to be on the other side of the coin, and I think it’s a travesty how unfairly most fathers are treated by the court system. Until you live it, you never know it.

LWalsh…what you wrote is so profound. Please visit “Fathers and Families”, I believe you will like what they stand for. You are correct in saying, “until you live it, you never know it”. I am a stepmother witnessing this form of a travesty and the childrens’ lives that it destroys.

LWaish, I also agree with what you wrote. I also agree with Amber, as I am as well a stepmother who whose life has been overtaken by this travesty for the past 4 years.

I have had to watch so much emotional tragedy and abuse of the system and, what is most astounding, is that there has never been a reason for the behavior of my husband’s ex other than to take his child support every month while being hellbent on destroying his relationship with his son.

Fortunatly, we have fought back hard the entire time and she has not succeeded “completely” in doing that.

We just have to endure the transition phase that my stepson goes through every other weekend and every visitation (from hating us when we pick him up, to loving us as time passes when he is with us, to hating us again when it is time to go home and so on).

No one will ever truly understand unless they have lived this and experienced it first hand. Like most people, in the beginning I started out asking “why?” would someone behave like this, then I did extensive research and learned about PAS and found hope and answers to my questions.

I have learned how to deal with my husband’s ex-wife effectively not only for my sanity, but for the welfare of my stepson, the ultimate victim of his own mother.

God Bless Amber and LWaish.

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