For most people with children who are going through a divorce, the primary concern is the child(ren).  New clients will sit in my office and tell me with speficity what they want (or sometimes don’t want) when it comes to custody and visitation.  It is often the only issue they can effectively communicate their exact needs and wants about at an early stage of the process.

I know this is not limited to my experience.  I know that my family law colleagues share similar stories and experiences.  When two parties cannot agree on what is best for their child(ren) they leave the decision in the hands of the court, specifically a judge.  That judge, without really knowing the parties on an intimate level, without really knowing the kind of people or parents they are, more likely than not without having met the child(ren), are oftentimes faced with the hardest decision in any case.  During my clerkship I often heard the family part judges commiserating over tough decisions regarding custody and visitation.  It is a decision no judge should take lightly.

A recent unpublished Appellate Division decision reminds us about the gravity of these decisions and that judges, although granted great discretion, must follow certain protocol. In the matter of M.H.S. v. L.G.S., the Husband filed an action for divorce after a 1 year marriage.  The parties had a 1 year old child.  Shortly after the initial filings, Wife filed a motion seeking, along with other requests, sole custody of the child and allowing Husband only supervised visitation.  Wife alleged that Husband was addicted to pornogrpahy with an incestuous theme and that he was abusing prescription drugs.  During oral argument of the motion, the Husband refused to be supervised and stated that he would not see the child until the court proceedings were completed.  Both parties were present but neither provided testimony.  The judge issued an Order on those applications which in part referred the matter to DCPP (“Division of Child Protection and Permanency”) to investigate the allegations, required the parties to select a parenting/custody expert, and directed that a plenary hearing would be scheduled as soon as possible following the expert’s report.  The judge who entered this Order was eventually transferred and a new judge took over the matter.  The parties never obtained a custody/parenting time expert and the court never followed up on this issue.

The Wife was also ordered to provide DCPP and the court with information detailing her accusations of pornography addiction.  She did so and provided snapshopts of the photos and websites found on the family computer using a spyware software program.  The Wife’s certification also provided specific instances of prior conduct by the Husband toward the child that she viewed as unusual and indicating a risk of sexual misconduct.  DCPP issued 2 reports to the court, neither of which made an findings specifically related to the Wife’s allegations of Husband’s addiction to pornogrpahy with an incestuous theme.

Several months later, Husband filed an application seeking unsupervised parenting time.  An Order issued on that application stated the Wife had acted in bad faith and had made false allegations.  During the next court appearance, the court again did not take any testimony from the parties who were present.  The court also did not consider evidence of the pornography websites.  The court went on to state that the Wife was not credible and that DCPP had stated that the allegations were unfounded.  Given that the two DCPP reports were bereft of reference to the pornography allegations this finding was incorrect.  The court lifted the restrictions on Husband’s parenting time, without conducting a plenary hearing and without hearing testimony or reviewing evidence and granted Husband immediate overnight weekend parenting time.  Wife obtained a temporary stay but a stay to the family part was denied.  Wife then tried to file an emergent application for recusal of the judge, which was converted to a motion and set down for a later date (it was eventually denied).  The Appellate Court granted Wife permission to file an emergent motion for leave to appeal and a stay.  That motion was ultimately granted.  However, in the 4 days before the permission was given and the motion granted by the Appellate Division, the Superior Court declined to delay its Order for immediate overnight parenting time and ordered Wife held in custody until she complied and produced the child.  Given Wife’s refusal to cooperate, the court then modified the temporary arrangement and granted Husband physical custody of the child directing local police officers to enforce the Order while Wife remain incarcerated.  When police officers showed up at Wife’s residence to enforce the Order, her counsel made an emergent application to the Appellate Division for a stay, which was granted.  Thereafter, the Appellate Division granted Wife’s motion for leave to appeal and for a stay of all custody and parenting time Orders.  After the stay was granted and motion for leave to appeal were granted, the Superior Court sua sponte issued another Order granting Husband 11 hours of supervised parenting time each Saturday and Sunday.

The Appellate Division held that the custody and parenting time dispute should not have been decided without the Superior Court conducting an evidentiary hearing.  To establish that there is a need for an evidentiary hearing in a custody or parenting time dispute, a party must show that a genuine issue of material fact exists.  The Wife met that burden.  Moreover, even if the DCPP report had concluded that the pornography allegations were unsubstantiated, it is the court’s responsibility to determine the facts and that function cannot be ceded to a third party.  Also, the trial court judge’s remarks on the record regarding the Wife’s credibility should have been determined through a hearing.  The primary function of the Family Part is to evaluate and protect the best interests of the child.  In this case, the trial court failed to do so.  The matter was reversed and remanded to a different judge, given the bias the judge had expressed on the record and in Orders.


Sandra C. Fava, Partner, Fox Rothschild LLPSandra C. Fava is a partner in the firm’s Family Law Practice, resident in its Morristown, NJ office. You can reach Sandra at 973.994.7564 or sfava@foxrothschild.com.

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