Typically, divorce cases are handled by the court on the “FM” docket and cases involving people that weren’t married but have children together are handled on the “FD” or non-dissolution docket.  Despite the fact that a custody case is a custody case, and child support issues are child support issues, no matter the docket, FD cases are treated as “summary proceedings” and therefore, handled differently.  The initial financial disclosures are not as rigorous and comprehensive and the there is no automatic right to discovery.  That said, as we have blogged before,  there is precedential case law that provides that no matter what type of case, the same rules apply with respect to discovery and investigation, and the trial court judge is under the same obligation to apply the legal standard resulting in a decision that is in the best interests of the child.  But that doesn’t always happen.  The rules for pleading are different.  You have to ask for permission to seek discovery which you don’t always get, but should.  Sometimes you appear for what you thought is going to be a trial and either the trial judge just makes a decision, or listens to a little but (or a lot) of argument (not real testimony), and makes a seat of the pants decision.  Often, because people that appear in the FD part are self-represented, they have no idea what hit them.  When clients who have a case in the FD part ask me what will happen in terms of procedure, I tell them what should happen, but then also tell them that sometimes these proceedings are like the wild west.

That’s exactly what seemed to happen in the case of Gallagher v. Whittemore, an unreported (non-precedential) decision released on October 21, 2021.  In that case, the facts seem relatively straightforward.  The parties, unmarried, had a child in 2015.  They separated in 2017.  They maintained a 50-50 parenting schedule from July 2017 to July 2020.  In August 2020, Dad tried to formalize the arrangement in writing but mom refused to sign and then begin limiting dad’s time, refusing mid week overnights and only allowing alternate weekend overnights.  As a result, Dad’s time went from 50-40 to to alternating Fridays and Saturdays and dinners every Monday and

In January 2021, Dad then filed a complaint that was docketed in the FD part requesting joint custody and a 50-50 time sharing order.  Mom filed a counterclaim on February 11th, and Dad filed a reply on March 2nd.  A telephonic hearing was heard on March 23, 2021. At the hearing, the judge summarized the parties positions and then allowed counsel to make a statement for the record.  During the hearing the judge indicated that there were no expert evaluations or any best interest evaluations to examine – but how would there be because the case just started.  The judge reasoned that a best interest evaluation costs thousands and thousands of dollars and that he did not think it was necessary in this situation. The judge stated that he “was not looking to make this decision, but that’s [his] job.” The judge also indicated that he was “a little bit at a disadvantage” because he did not “have a complete picture.” When plaintiff objected to the fact that no plenary hearing had been held, the judge articulated that the order is without prejudice to plaintiff’s ability
to retain an expert and refile a modification application. Plaintiff attempted to calendar the matter for a hearing, regardless of whether plaintiff hired an expert, the judge didn’t agree.

At this only hearing, less than two full months post filing, the trial judge decided that the parties would share legal custody but that mom would be designated the primary residential custodian.  Dad’s parenting time was set at every other weekend from Friday to Monday in addition to time from 2:30 p.m. to 6:30 p.m. two times a week on the weeks he had weekend visits and three times on
the weeks where he did not have weekend visits, reasoning that week night overnights would be disruptive and would not provide adequate stability for the child. The judge also decided that the child would attend school in mom’s town. Naturally, dad appealed.

The Appellate Division reversed agreeing that experts and a plenary hearing were required.  The Court noted:

Here, the judge admitted that an expert report on whether there should be overnights during the week might be helpful. He stated that he was “at a bit of a disadvantage” because he did not “have a complete picture.” The judge even indicated that if plaintiff retained an expert, he would hold a plenary hearing, but when plaintiff tried to schedule the matter for a plenary  hearing, the judge refused to calendar the matter. Instead, the judge instructed plaintiff to refile. He then formulated a custody and parenting time schedule based entirely on his own opinion what was in the best interests of the child without holding a hearing to adduce supporting evidence. ….

Here, the judge did not make sufficient findings of fact. The judge’s only finding of fact was, “I am satisfied that until August of 2020 that there was 50/50 parenting time, but for whatever reason, it changed.” The judge did not make any other findings of fact. In making his decision regarding custody and visitation, the judge simply stated, “I’m not going to grant the 50/50 parenting time at the present time. I don’t know that that’s necessarily what’s in [the child]’s best interest.” The judge discussed the child’s school schedule and the child’s need for stability, but he did not make any findings of fact as to why
overnight visits on the weekend are disruptive, but two or three weekday afternoon visits are not.

Further, while the judge does not need to list all the statutory factors, there are some that could have been referred to in the judge’s analysis. The judge ignored three factors relevant in this case; “the parents’ ability to agree,” “any history of unwillingness to allow parenting time not based on substantiated abuse,” and “the extent and quality of the time spent with the child prior to or subsequent to the separation.” Therefore, we are constrained to remand the case for further fact-finding.

Not only that, but the Appellate Division remanded the matter to a different judge, noting:

Because the judge in this case expressed strong feelings about deciding the matter through statements such as “I’m not looking to make this decision, but that’s my job” and “I don’t like dealing with these situations” and because he exhibited a clear opinion as to the appropriateness of weeknight overnights and whether 50/50 parenting is necessary, the matter should be assigned to another judge on remand.

Unfortunately, decisions like this happen all too often.  Pre-Covid, very often a judge could have dozens of cases on her or his docket in a day that needed to be disposed of.  Some of them could possibly be disposed of summarily, but many cannot.  This case is a cautionary tale of the need to advocate strongly, as Dad’s attorney did here, for due process rights to be afforded, even though the matter is in the FD part.


Eric S. Solotoff, Partner, Fox Rothschild LLP    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.