It should come as no surprise that a child’s best interests change over time. That is one of the reasons why, under the law, that custody and parenting time Orders and Agreements are always reviewable and modifiable. However, that doesn’t always happen in real life. Very often, litigants are turned away with a finding that something that sure seems like a change of circumstances is not deemed to be a change of circumstances necessary to warrant discovery and a plenary hearing (trial). Maybe it is because judges don’t want let people crank up a whole new litigation. Who knows. But it happens a lot.
And it happens thought the bar to make what is called a “prima facie” showing is pretty low – i.e. the facts, if true, would be a change of circumstance.
This scenario unfortunately occurred in the case of R.G. v. M.Y., as noted in the unreported (non-precedential) Appellate Division decision released on October 10, 2024.
There are a lot of facts regarding how this case got back to court which are not particularly relevant for this blog. What is relevant is that when the parties settled custody and parenting time, their child was about 14 months old. Dad lived in Pennsylvania at the time and mom lived in New Jersey.
By the time that dad moved for modification of parenting time in 2022, the child was almost 6 years old and in school. Moreover, dad was now living in New Jersey, less than ten minutes” from where mom resided. At the time, dad also worked from home and was no longer required to commute to his office in Pennsylvania, making him more available, or at least that is what he argued. He alleged other changes that were less relevant.
Mom opposed modification and the trial court denied dad’s motion finding that he “… failed to provide proof as to a change of circumstances to merit a change.” At the reconsideration motion, the judge said he was “somewhat persuaded, but it doesn’t carry the day, . . . that [defendant] is available for more [parenting] time” because defendant’s increased availability for Molly was “not a changed circumstance.” The judge also found that spending more time with dad wasn’t in the child’s best interests because the parties don’t get along. Now, if that was the standard, the parent of alternate residence would never get more time but that isn’t the standard.
The Appellate Division reversed finding that dad did make a showing a changed circumstances, specifically:
Defendant’s change in geographic proximity to Molly, coupled with her maturation and entry into school, established the requisite prima facie case and entitled defendant to a review of the parenting time plan to determine what is in Molly’s best interest.
…Molly’s maturation and entry into school, which affected her availability for parenting time with both parents, and defendant’s ability to see her more often because he moved closer to her, established the requisite prima facie case of changed circumstances warranting review.
Citing to Cardali (the cohabitation case that we have blogged about), the Appellate Division noted that a prima facie demonstration is not particularly onerous – it is simply a threshold showing.
Once that threshold showing is made, the court must then determine what is in the child’s best interests. Interestingly, the court noted that this determination must be done “… without relying on any previous court orders or agreements between the parties.” Accordingly, the Appellate Division determined that it was also error denying dad the opportunity to get a custody expert and/or hold a plenary hearing.
The Court did affirm the denial of dad’s request that a GAL be appointed for the child.
I have seen custodial parents argue that maturation is foreseeable, and thus not a change in circumstances. While sometimes that works, it may really be inconsistent with the law, but really it is a fact specific argument that should win the day one way or the other – as opposed to just making a conclusory statement regarding maturation.
I have also seen arguments that the non-custodial parent moving closer shouldn’t be considered a change of circumstance because it is self-created, etc. Clearly, this court disagreed.
The takeaway from this case is that it shouldn’t be hard to at least make well-grounded allegations about changes of circumstances, and if you do, you may very well be entitled to a plenary hearing.
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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department 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.