Last summer, Eliana Baer and Eric Solotoff of our Family Law Department achieved an Appellate Division victory when a trial court’s decision to allow our client’s ex-husband to obtain a custody evaluation without the requisite finding that there had been a change of circumstances.  In that case, the Appellate Division took issue with the trial court’s choice to put the child through a taxing best interests evaluation because there are two elements that must be met before a change of custody or parenting time can occur:  1) a change of circumstances; and 2) a finding that the proposed change of custody or parenting time is in the best interests of the child.  The judge in that case had ordered an inquiry into the second factor vis a vis the best interests evaluation, but had expressly found that there was no change of circumstances warranting a modification.  Without a change of circumstances finding, there should not have been such an inquiry.

A recent unpublished (non-precedential) decision, CSS v. ATE, serves as a reminder that both of these findings must be made before a change of custody and/or parenting time can occur.  In this case, the father claimed to have suffered a physical injury that would prevent him from working, making him available for more parenting time. The father did not present any information about how long his injury would keep him from working or how he might handle recovering from this injury while increasing his childcare responsibilities.  The Court made no findings whatsoever with regard to whether or not the proposed change in the parenting time schedule was in the best interests of the child.  Nevertheless, the trial court increased the father’s parenting time.

The mother appealed.  The Appellate Division found that:

A.T.E. introduced no evidence of changed circumstances other than his testimony that he will have more time off from work while recuperating from an injury.  This alone is insufficient to constitute a change in circumstances.  In addition, the court did not undertake an analysis of the child’s best interests.  No testimony or other evidence was elicited with respect to how a change in custody and parenting would affect the child.

On this basis, the Appellate Division reversed the trial court’s decision.  In doing so, it reminded us that “Custody orders are subject to revision based on the changed circumstances standard,” citing Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).

Modification of an existing child custody order is a “two-step process.”  R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014 (quoting Crews v. Crews, 164 N.J. 11, 28 (2000)).  First, a party must show “a change of circumstances warranting modification” of custodial arrangements.  Id. at 63 (quoting Beck v. Beck, 86 N.J. 480, 496 n.8 (1981)).  If the party makes that showing, the party is “‘entitled to a plenary hearing as to disputed material facts regarding the child’s best interests, and whether those best interests are served by modification of the existing custody order.'”  Id. at 62-63 (citation omitted).  Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015)

These standards are in place because it shouldn’t be easy to disrupt a child routine, lifestyle, and household – and it isn’t.  At least not when the proper benchmarks for modification of custody and parenting time are followed.

headshot_diamond_jessicaJessica C. Diamond is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or