Last week, Eric Solotoff and I achieved victory in the Appellate Division in the unreported (non-precedential) decision of Gatto v. Breton, wherein the Court reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation without the requisite finding of changed circumstances.

By way of background, the parties were divorced in 2011 following a brief marriage. They have one son, who is 14 years old. The boy lives primarily with the Defendant mother in Bergen County and spends time with the Plaintiff father every other weekend and alternating Wednesday evenings.

Since the parties’ divorce, they have heavily litigated in the trial court. As of the time of the Appellate Division filings, the parties had been before 5 judges in 2 different counties on various post-judgment applications. All of such applications involved various aspects of custody and parenting time disputes.

About a year before the appeal was filed, the Plaintiff father filed a motion for a custody evaluation and a change in custody. The judge denied the request, finding that the Plaintiff father had not shown a change in circumstances, which a party seeking a change in custody must establish as an initial matter to gain relief according to the seminal case of Lepis v. Lepis.

In so ruling, the judge specifically rejected the Plaintiff father’s argument that the child’s age and alleged statements that he wished to live with his father were sufficient in light of the ample proof that he was thriving under the arrangement then in place.

Less than a year later, a new judge – the parties 5th – heard yet another motion by the Plaintiff father to permit him to obtain a custody evaluation and to transfer custody to him.

The judge denied the request to transfer custody, finding “no prima facie showing that it’s [in] the best interests of this child and there hasn’t been a demonstration that there is a significant change in circumstances.” Despite such finding, however, the judge permitted the Plaintiff father to obtain a custody evaluation. The Defendant mother’s appeal followed.

The Appellate Division reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation, stating that such an order went against the well-founded principle that a party seeking a change in custody must demonstrate changed circumstance before being entitled to discovery and an evidentiary hearing.

Yet, in the instant matter, the judge expressly found that the Plaintiff father had failed to establish a change in circumstances. As a result, the Appellate Division determined that the Plaintiff father was not entitled to a custody evaluation, which requires “a very expensive and intrusive investigation into all aspects of the parties’ lives and the best interests of their child.” Permitting such an evaluation “is plainly permitting extensive discovery which…may only be ordered following a prima facie showing of changed circumstances.”

The Appellate Division’s decision in this case makes clear that custody evaluations are not to be ordered lightly and without the initial finding of a change in circumstances. Custody evaluations are serious endeavors, which require a forensic custody evaluator “to assess the personality and cognitive functioning of the person being examined to assist the court in a best interests determination.” A trial court is, therefore, prohibited from skipping the critical step of finding a change in circumstances prior to making its determination to permit such an intrusion into the lives of the parties and the child.

For more information on my Appellate Practice and the process I undertake in preparing you for success in the Appellate Division, see my prior blog: Trying Cases with an Eye Toward Appeal: What Your Lawyer is Thinking and Doing at the Trial Level to Preserve Your Case.


Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or