When I was a young lawyer, with far less gray hair than I have now, I remember citing, Lepis v. Lepis, the seminal New Jersey case on modification of agreements or orders, for the proposition that “contract principles have little place in the law of domestic relations.” And that seems to make sense because you are dealing with people’s lives, children, careers, loss of jobs, etc. Seemingly that is why the concept substantial and continuing changes of circumstances being required to modify something.

This seems particularly important regarding child related issues where courts have gone as far as holding that passage of time could be a change of circumstances. Certainly, it would seem that conduct could be a change of circumstances too. For instance, what if one parent has some sort of shared parenting in an Agreement or Order but for whatever reason, does not exercise it for years? Should they expect that they can just re-appear as if there hasn’t been years of not exercising the time

On the other hand, what if, by agreement, one parent received more parenting time than the Marital Settlement Agreement (MSA) called for and that that scenario also went on for several years? Should the other parent just be able yank the rug out from under the parent that had more than agreed simply because a new Agreement or consent Order was not entered into? One would think no.

One would be wrong. Or at least that is what happened in the case of L.M. v. I.M., an unreported (non-precedential) Appellate Division case decided on May 19, 2026.

In that case, the parties were divorced in 2018. Their MSA had a parenting schedule in it with an agreement that it would be reviewed after the custody expert completed the custody evaluation. IN March of 2019, upon completion of the evaluation, the parties modified the parenting time schedule set forth in the MSA. I.M. had the children on alternate Mondays for dinner, each Wednesday overnight and alternate weekends from Friday to Monday morning – basically a 9-5 schedule. The Consent Order also had a right of first refusal provision if a party was going to be unable to exercise overnight parenting time.

In 2020, L.M. allowed I.M. to have the Fridays on her parenting weekend and also allowed him to pick the children up earlier on Fridays. Note that at the time, the parties were working with a therapist to transition to a 50-50 schedule. L.M. was not prepared to comply with 50-50 so the change, which she proposed, seems to be the concession.

In 2025, approximately 5 years after this schedule was in effect, L.M. basically pulled back the additional time and was reverting back to the 2019 Consent Order. I.M. filed a motion to officially recognize what had been going on for 5 years or for compensatory time.

The trial judge denied I.M.’s motion based upon a provision in the Consent Order, that seeming had not been followed, which stated, “. . . [d]efendant’s parenting time with the parties’ son, H.M., shall not be impacted by this order.” The judge also pointed to a mediation clause in the Consent Order. Further, the judge determined defendant “may have enjoyed Friday parenting time in the past,” but “he is not entitled to parenting time beyond what is set forth in the MSA.”

Surprisingly, at least based upon what was reflected in the Appellate Division decision, the trial judge did not base the decision on the best interests of the children, or the impact that reducing I.M. parenting time would have on the children.

Neither did the Appellate Division, though the decision pointed out that best interests was the standard for custody arrangements and further, that the standard for modification was a substantial change of circumstances.

The Appellate Division then goes on for more than 3 pages citing to contract principles, never addressing that for five years, the extra time was a change of circumstances which impacted the children’s best interests. Rather, this decision solely rested on contract principles because the MSA said that modifications had to be with the same formality of the MSA – yet the parties had previously modified the MSA with a Consent Order.

Moreover, they found that the conduct was not really relevant because L.M. received no new consideration for modifying the parenting schedule. This is also odd because in most cases where there is a modification of parenting time, the “consideration” received by the parent giving up time is difficult or impossible to ascertain. This also makes sense because the standard is the best interests of the children.

In short, if custody and parenting time is supposed to be the children’s best interests vs. the parents interests, this decision is certainly a head scratcher.

The takeaway, however, if that if you are going to change parenting time for anything more than a very short period of time, get it in writing.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog. He is also the former and founding 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.