In a new, published (precedential) decision, J.G. v. J.H.Judge Koblitz, of the Appellate Division confirmed and explicitly held what we all should have known before:  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.

FD Docket versus FM Docket

It sounds obvious:  the welfare of all children should be determined using the same standards and practices.  Child custody and parenting time determinations are made under either one of two case or “docket” types.  The FM docket type refers to divorce cases; obviously, oftentimes a child custody decision is made incident to a divorce.

When a child custody or parenting time issue arises between unmarried parents (or, more uncommonly, married parents who have not yet filed for divorce), these are handled under the FD or “Non-Dissolution” (i.e. a marriage is not being “dissolved”) docket.  These types of cases are known as “summary proceedings,” meaning that they are to be handled much more quickly than divorce cases.  While divorce cases are automatically assigned timeframes for exchanging information and appointing experts if needed, this is not automatically done in FD cases and if you want discovery or experts, you have to request it.

As a result, in practice, many judges are tasked with and face the pressure to move FD cases along quickly.  Unfortunately, in the J.G. v. J.H. case, and perhaps in many others like it, this led to a very important decision about a child’s custody and welfare being made quickly without taking the proper steps to investigate the best interests of the child that would have occurred in due course in a divorce case.  In this important decision, the Appellate Division reminds us that bona fide disputes in child custody cases must not be treated differently just because they may arise in different case types.

The Facts of J.H. v. J.G.

In J.H. v. J.G., although there was no court order establishing same, the parties essentially shared joint legal custody of the minor child, with the mother designated the parent of primary residence and the father the parent of alternate residence with liberal parenting time.  When the mother began dating someone else, the father alleged that this new romantic partner posted a threat to the safety of the child, and came to court requesting sole custody.  The Court temporarily awarded the father sole custody.  When the mother challenged this, the Court entered a permanent change in the parenting schedule, making the father the parent of primary residence and significantly reducing the mother’s parenting time.  The judge made each of these decisions without investigation, and gave the parties no opportunity to resolve their differences amicably.  The judge did not allow for discovery (even though the mother’s attorney requested it), did not allow the mother’s attorney to meaningfully participate in the proceedings; nor did the judge conduct a hearing despite the the fact that the parties’ claims were completely contradictory.

Requirements for ALL Custody Disputes

Thus, the Appellate Division affirmed that the following requirements must be adhered to in ALL custody disputes, no matter the docket type:

Pre-Hearing Requirements

  • Pursuant to Rules 1:40-5 and 5:8-1, parties must attend Custody and Parenting Time Mediation prior to a trial.
  • If parties are unable to resolve the issues in mediation, they must submit a Custody and Parenting Time Plan to the Court, pursuant to Rule 5:8-5(a) and the case Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001).
  • Where there is “conflicting information regarding which parent can serve the long term best interest of the child,” but there is no issue as to the psychological fitness of either parent, the Luedtke case requires that a Social Investigation Report should be completed.
  • In FD cases, if a party requests that the matter be placed on the “complex” case management track, the court can in its discretion grant this request under Major v. Maguire, 224 N.J. 1, 24 (2016), a case on which I have written in the past.  Absent a clear reason to deny such a request, it should be granted.
  • Pursuant to Rule 5:8-1, an investigative report should have been prepared by court staff before any custody determination is made.

Required Plenary Hearing

In all contested custody matters, a thorough plenary hearing is required where parents make materially conflicting representations of fact, pursuant to K.A.F. v. D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014) and many other cases.  The plenary hearing must afford both parties the opportunity to present witnesses and to cross-examine the other party’s witnesses, and parties and counsel must have a meaningful opportunity to participate.

Requisite Fact-Findings and Reasons for Award

Judges must explicitly make findings of fact and apply those facts to the custody factors set forth in N.J.S.A. 9:2-4(c), which are:

  • the parents’ ability to agree, communicate and cooperate in matters relating to the child;
  • the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  • the interaction and relationship of the child with its parents and siblings;
  • the history of domestic violence, if any;
  • the safety of the child and the safety of either parent from physical abuse by the other parent;
  • the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  • the needs of the child;
  • the stability of the home environment offered;
  • the quality and continuity of the child’s education;
  • the fitness of the parents;
  • the geographical proximity of the parents’ homes;
  • the extent and quality of the time spent with the child prior to or subsequent to the separation;
  • the parents’ employment responsibilities;
  • the age and number of the children; and
  • a parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

Without specifically addressing each and every one of the above factors after listening to the facts presented by both parties and assessing credibility, a court cannot make a determination as to what is in the child’s best interests.

Of course, ALL children and parents deserve this type of extensive inquiry into their welfare and the parent-child relationship – but thankfully this case makes it official and provides additional precedent for overruling or remanding trial court decisions made in haste, without the requisite inquiry.


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

In our ever-changing society that is becoming more transient as we modernize, it’s important to remember time requirements for a state to establish jurisdiction over a child should you find yourself in need of a custody determination after residing across state lines. 

In the reported decision of P.H. v. L.W., the parties met in Chicago while P.H. lived in New York and L.W. lived in South Dakota, had twins born in South Dakota and, eventually after a sorted history, they resided together in New Jersey from July 18, 2015 to January 13, 2016 when L.W. packed all of her and the twins’ belongings and made her way back to South Dakota where she arrived on January 15, 2016. P.H. then returned to New York in early 2016.  The facts are explored below but it’s primarily important to look at the takeaways here based on those bare bones.

First, the Appellate Division reversed the trial court’s findings that New Jersey was the “home state” of the parties’ twins because they resided here for five (5) days short of the six (6) month requirement of N.J.S.A. 2A:34-54. The initial orders finding New Jersey as the home state were entered based upon the P.H.’s misrepresentation that the twins begin residing in New Jersey three (3) days earlier than L.W. and the twins actually moved in with him in Dumont (July 15, 2015 as compared to July 18, 2015).  That earlier date is when he signed the lease for the Dumont apartment, without L.W. on the lease, as opposed to the day that they actually moved in with him.

Additionally, the Appellate Division further found that the twins’ absence from New Jersey for the few days short of the six (6) month requirement was not “temporary”. If, for example, the twins were on vacation for those days, then the days would have counted toward the required time period.  Here, however, their absence was the result of L.W. moving permanently from New Jersey back to South Dakota where she hails from.

Although the trial court’s jurisdiction finding was based solely on the “home state” argument, the Appellate Division did not stop there to hammer home the point that New Jersey lacked jurisdiction.  Rather, it explored the alternatives that New Jersey could have used to find jurisdiction of the parties’ twins.

Citing to N.J.S.A. 2A:34-65(a)(2), New Jersey may still have custody over a child who resides here for less than six (6) months if:

  1. No other state has jurisdiction or
  2. A court with home-state jurisdiction declines to exercise it and
    • the child and at least one parent or person acting as the parent have a significant connection with New Jersey other than mere physical presence and
    • substantial evidence is available in New Jersey concerning the child’s care, protection, training and personal relationships.

Neither of the above requirements existed in the case at hand, in part due to the time that passed between the father arguing that New Jersey is the home state (and leaving out the above alternatives) and the present appeal.  P.H. initially filed his New Jersey custody application on January 28, 2016 when the twins had been outside of the state for about two (2) weeks.  The trial court could have found jurisdiction based on the “significant connection” and “substantial evidence”.  However, with the passage of time, this totally changed.  The Order being revisited was entered in June 2017 denying L.W.’s April 2017 request to dismiss the New Jersey custody orders based on a lack of jurisdiction.  At the time it was filed, both parties had resided outside of New Jersey for almost a year and a half.  Thus, jurisdiction would not have been warranted by either the significant connection” or “substantial evidence” tests, above.

Taking it a step further to really confirm that New Jersey does not have jurisdiction, citing to N.J.S.A. 2A:34-71, the Appellate Division opined that South Dakota is a more convenient forum as compared to New Jersey.  Here, it is important to note that even if the above standards had been met (either the home state, significant connection or substantial evidence tests), New Jersey courts have the authority to decline jurisdiction if:

  1.  New Jersey is an inconvenient forum under the circumstances and
  2. Another state is a more appropriate forum.

There is no question that South Dakota was more convenient as L.W. and twins had lived there for about a year and a half when the appeal was filed.

Although the above may seem straight forward, family law cases are extremely fact sensitive and the facts here are nothing short of interesting:

Timeline of Residence in New Jersey

  • L.W. is from South Dakota and lived there when the parties met in Chicago in 2012.
  • P.H. resided in New York when the parties met.
  • L.W. became pregnant and gave birth in South Dakota in June 2013.
  • P.H. returned to New York City following the birth.
  • L.W. and the twins lived in South Dakota until 2015 with period visits from P.H. that she claims included domestic violence acts committed against her.
  • In June 2015, L.W. and the twins went to live with P.H. in New York – both in an RV on a campground and in P.H.’s apartment.
  • On July 15, 2015,  P.H. signed a lease for a house in Dumont.
  • L.W. and the twins moved into the house on July 18, 2015.
  • L.W. obtained possession of the home upon entry of a Temporary Restraining Order (“TRO”) in New Jersey on December 14, 2015, which also provided that she have custody of the twins.
  • P.H. obtained his own TRO against Defendant on January 11, 2016, also filed in New Jersey.
  • On January 13, 2016, L.W. packed her belongings for a permanent move back to South Dakota, and she provided evidence by way of her mover’s inventory that she took all of her belongings and the move was permanent.
  • On January 15, 2016, L.W. arrived in South Dakota where she continues to reside with the twins.  There was evidence that she was in Chicago on January 14, 2016 and, thus, had started her journey back to South Dakota.
  • P.H. then returned to New York shortly thereafter.
  • On January 28, 2016, the New Jersey court dismissed L.W.’s TRO against P.H. when she failed to appear for the final hearing.

Timeline of Custody Determinations in Both South Dakota and New Jersey

  • On January 28, 2016, the same date of the above TRO dismissal, P.H. filed a complaint seeking determination of paternity and custody.  P.H. failed to successfully serve L.W. at the address he sent the motion, namely her father’s home, as L.W. was living at an undisclosed residence because she did not want P.H. to know her whereabouts in light of her alleged domestic violence history.  L.W.’s father did not send her this mail until October or November 2016.  This unopposed application was the catalyst for New Jersey being declared the twins’ home state.  Of course the lack of service was not yet known to the court.
  • During the time in which P.H. filed his case in New Jersey (without L.W.’s knowledge), L.W. obtained a temporary order of protection in South Dakota on January 27, 2016 and then the final Order on March 8, 2016, which awarded her custody of the twins.
  • On March 17, 2016, the New Jersey court entered an order requiring L.W. to submit the twins to genetic testing for paternity purposes following the unopposed application.
  • On September 1, 2016, the New Jersey court ordered L.W. to bring the children to New Jersey, finding that she improperly removed the twins who had resided in New Jersey for six months.
  • On October 25, 2016, the New Jersey court again found that New Jersey was the twins’ home state because they lived here for six (6) months and ordered a bench warrant for L.W.’s arrest, as well as modified custody to grant P.H. sole legal custody of the twins to have them brought back to New Jersey to address paternity and custody issues.
  • P.H. used that New Jersey Order as support for his request that South Dakota modify its March 2016 Order granting L.W. custody of the twins.  L.W. opposed the application.  The judges of each state conferred and then South Dakota vacated the custody portion of the protective Order and ordered that L.W. comply with the New Jersey genetic testing Order, which she did.
  • On March 31, 2017, the South Dakota Court relinquished its limited jurisdiction to New Jersey.
  • In April and May 2017, L.W. unsuccessfully challenged the Orders entered in both states as to New Jersey’s jurisdiction – with New Jersey finding that jurisdiction had been decided and the family would be left without a “place to go” because South Dakota relinquished jurisdiction.  The trial court never addressed L.W.’s argument that New Jersey is an “inconvenient forum”.

With all that said, try to ensure that your children reside in the state where you want to be heard for at least six (6) months before you file for a custody determination.  That can be easier said than done.  Whether your timing is a bit off or you meet the six (6) months, do not box yourself into a corner by basing your case on only one argument in your favor – use them all.  That holds true for issues well beyond custody jurisdiction.  Happy home hunting!


Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

Going through a divorce is one of life’s greatest disruptions. Whether you are resistant to the divorce and it feels like a tragedy or you are initiating the divorce and it feels like an escape, there is no doubt that divorce creates a massive change in your family life, finances and day-to-day routine.  At its core, divorce is the process of going from “we” to “me” which can be daunting, exhilarating or something in between. Many clients going through a divorce ask: when can I start dating and how will it affect my divorce?  The answer is never black and white, as dating during a divorce can have its pros and cons.

people holding sign pros

  1. Dating is a much needed distraction during divorce

For all parties involved, the process of getting divorced is difficult. Divorce can turn your life upside down, add new stressors to an already hectic life and create a financial burden that wasn’t there before. Your spouse, the court (and yes, sometimes the lawyers) can at times be frustrating. It is perfectly normal to want to forget about your divorce and take a break from it, even if it’s just for an evening. Dating can be a much needed “vacation” from the reality of divorce.

Many divorcing couples do not go from marital bliss to divorce court overnight, and it may have been a while since you’ve had a positive romantic experience. Dressing up for a night on the town with an uncomplicated new partner is sometimes just what the doctor ordered. Spending time with a new, exciting person can be a wonderful distraction from the messy, tortured history of your marriage.  This breath of fresh air can give you the reprieve from the drama that you need to forge ahead in your divorce.

  1. Taking control of your dating life is empowering and can boost self esteem

Divorce can make a person feel unappreciated, undesired and out of control. Whether you did not want the divorce, or you don’t like a decision a judge has made, it can be unnerving to feel like you have a diminished say in what happens in your life. Dating can put you back in the driver’s seat of one area of your life, and provide some semblance of control. The positive benefits of a “clean slate” cannot be understated.  Stepping out with a new partner who finds you desirable and engaging, unburdened by the complications of parenting and finances that can come with a marriage, can work wonders for your mental health and sense of self-worth.  After long periods of battling with your spouse, it can be exceptionally refreshing to spend time with someone who is nice to you! Getting back in the game and feeling pursued and appreciated might be the ego boost you need to power through an unpleasant divorce.

  1. Embracing positivity can set the scene for a rational and amicable divorce

When you are in a bad place mentally, it is difficult not to make emotionally-charged decisions. Strategizing in a divorce based on emotions will position you and your spouse further away from resolution and, in the end, cost you more time and money.  While it may feel good to exact revenge or act out of spite, in the long term, it will likely only make your divorce that much more protracted and painful.

When you are in a good place mentally, you can more easily make decisions based on reason and practicality. You will feel less incentivized to hurt your spouse or be vindictive. In many cases, your approach to the divorce will shape your spouse’s attitudes, after all, no one wants to play the villain, but people are all too happy to take the gloves off when their spouse is already playing dirty. Dating may make you happier, which in turn, will enable you to approach your divorce with a level head and amicable attitude to create a more pleasant experience for all those involved.

holding sign cons

  1. Dating may fan the flames of acrimony between you and your spouse

While dating may make you happier, it might spur feelings of anger, jealousy or resentment in your spouse which will promote an ill-will in your divorce proceedings.  In this regard, you know your spouse best, and can gauge how they will react to you reentering the dating world. If you believe that dating again will cause your spouse to fly off the handle, be warned that it will likely lead to your spouse taking less reasonable positions and being more litigious in your divorce. In this sense, dating can backfire – as you are trying to move on with your life, your spouse may dig his or her heels in further, dragging out the divorce even longer as a result.

  1. Your kids might freak out

If you have children, you should give serious consideration to their thoughts and feelings before you start dating.  Without a doubt, your children’s lives will change drastically as a result of a divorce and they will likely mourn the loss of your family unit.  Do your children hold out hope that you and your spouse will reconcile? Have they (or are they old enough to) express their emotions about the divorce? Do they have the assistance of a family therapist or mental health professional to guide them through this process? All of these things must be considered before you throw another curveball into the family dynamic.

With regards to the legal implications of dating, how involved your new partner becomes with your children may have an effect on a custody battle between you and your spouse.  If custody experts are involved in your case, they will interview collateral contacts (including your new partner) as part of the evaluation and his or her past can affect the outcome of your case! A new partner with a criminal record, substance abuse or certain mental health issues can be a red flag for a custody evaluator (especially if they are around your children a lot) and may impact the custodial issues in your divorce.

  1. (Serious) dating might affect your spousal support

Most people who start dating after a divorce are in no rush for a big commitment, but some find it easier to cope with a divorce by jumping right back into a serious relationship.  You may lose your alimony if you are cohabiting with a partner in a marital-type relationship. Accordingly, you need to remain cognizant of how living with your new partner may affect the amount of alimony you receive in divorce or whether your ex-spouse can make an application to terminate alimony based on your cohabitation after divorce. It is important to note that this is a one-sided consequence. If you are paying alimony, feel free to date to your heart’s content – it won’t affect your obligation to pay your ex-spouse alimony.

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Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

Several years ago I did a post on this blog of the same name and then updated it some time later. The list then, as re-compiled below, are things to do if you really don’t want to settle your case.  As I said before, everybody is entitled to their day in court if they want it, but what if there is nothing that can be gained from it?  What if you can’t win?  What if forcing the matter to trial will create other legal issues? What if trial will cost tens of thousand of dollars or more?  Here is the list:

22. Your new significant other is a lawyer, they know better than your lawyer.  Of course they know better, you have been completely honest with them.  Of course they aren’t telling you what you want to hear – why would they do that?  And when they are speaking to their matrimonial partner about your case, they are giving them all of the facts, context and subtext of the case.

21. Every case is the same, so make sure that you demand the same deal that your hairdresser, or cousin’s friend, heard that that their cousin’s friend got.  While this information, if true, may be food for thought or points of discussion, ignore the potential differences inherent to each matter and demand that you get the same, even if it bears no relation to the appropriate resolution of the case.

20.  Pretend that you are Bill Murray in Groundhog Day, and keep having the same conversation over and over, hoping that the answer will be different.  And don’t just do that with your spouse, do it with your lawyer too.

19.  Hold grudges and let anger blind you from coming to a resolution that lets you move on with your life.  They are your feelings, don’t only embrace them but let them control all.  And don’t get therapy to deal with the real hurt, betrayal, rejection, depression, mourning, etc. that you are feeling.

18.  Allow emotions to impair your judgment on financial issues.  I know that you can’t imagine your spouse living in your home with someone new, but it’s a good idea to take less for the house by selling it rather than allowing your spouse to buy you out.

17.  Create a ruse that an emotional issue is really a financial one.  There will be a lot of nasty letters and everyone will be confused because you are not even arguing about the same thing, but at least one of you and his/her lawyer won’t know it.

16.  Profess a desire to settle but then never compromise on any issue.  Also, don’t let your experts compromise either, even in the face of an error in their report.  And if they do have to concede the error, make sure that they change something else so that their final number never actually changes.

15.  Hire a new lawyer on the eve of mediation or trial, and let that person enter the case like a bull in a china shop, as if the case just started, and there was no prior history.  Ignore the fact that both sides were making concessions and working towards and amicable resolution, and just blow things up and start from scratch, without any basis for doing so.  I am not saying that people cannot and should not change lawyers.  Sometimes it is necessary.  Sometimes the concessions being made are too much, for a variety of reasons.  But in cases where the negotiations and concessions are appropriate on both sides, if you don’t want to settle, pull the rug out from under the negotiations.

14.  Hire a second, then third, then fourth, then fifth attorney every time something doesn’t go your way.

13.  In alternating conversations with your lawyer, tell them that you need to settle immediately, then tell her that you want her to litigate aggressively, then settle, then litigate, and so on.  Follow that up by being angry with your lawyer because they were trying to settle when you were back to aggressively litigating, and vice versa.

12.  Believe your spouse when they are pressuring you to settle for a lot less than your attorney tells you would be a reasonable settlement.  While perhaps this doesn’t belong on this list, because it is a “how not to settle” list, maybe it belongs on a new list regarding regrets people have after taking a bad deal for the wrong reason.

11.  Let your spouse convince you that they you don’t need all of the discovery because “you can trust me”, when all other evidence indicates that you can’t.  Perhaps this belongs with the prior thought.

10.  Ignore your expert’s advice.  What do they really know about the value of your business or how a judge will likely assess your total income/cash flow?  What does an accountant know about taxes, or more importantly, how the IRS may address the creative accounting practices that you or your business have employed?  What does the custody expert really know?

9.  Ignore your lawyer’s advice.  What do they know anyway?  If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it.  If they tell you that you have real exposure on certain issues or may be forced to pay your spouses legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it.  And what does your lawyer know about the law or the judge anyway?

8.  Ignore the facts of your case.  Trust your ability to spin the facts in a way that doesn’t make sense.  Plus, how can they prove if you’re lying.

7.   Ignore what the neutrals are saying.  What do the Early Settlement Panelists know?  What does the mediator know?  When the judge has a settlement conference and gives directions, what does she/he know?  Assume that the people that have no “horse in the race” are aligned with your spouse or their attorney, have been bought off, or are just plain ignorant.  Really, it has nothing to do with the facts of your case or the reasonableness of your position.

6.  Ignore the law.  It doesn’t apply to you anyway.

5.  Continue to misrepresent things, even when the other side has documents to disprove virtually everything you are saying.  Assume that you will be deemed more credible than the documents.

4.   Believe that the imbalance of power that existed during the marriage will allow you to bully your spouse into an unfair settlement.  Assume that your spouse’s attorney wont try protect her/him.  All lawyers roll over on their clients, right?

3.   Take the position that you would rather pay your lawyer than your spouse. Ignore that fact that this tactic usually ends with your doing both, and maybe your spouse’s lawyer too.

2.  Pretend as if your spouse never spent a second with the kids in the past and has no right to do so in the future.  Make false allegations of neglect or abuse.  Ignore the social science research that says that it is typically in the children’s best interests to spend as much time as possible with each parent.  What do the experts know about your kids anyway?  And while you are at it, bad mouth your spouse to or in front of the kids. Better yet, alienate them.  Then fight attempts to fix the relationship.

1.   Take totally unreasonable positions implementing any or all of above and on top of that, negotiate backwards.  Ignore the maxim “Pigs get fat, hogs get slaughtered.”  Put deals on the table and then reduce what you are offering.  Negotiate in bad faith.  Negotiate backwards.  Don’t worry that this conduct may set your case back.

The above was and is clearly facetious and tongue in cheek. I do not recommend this behavior.  It is usually self destructive and short sighted.  But, believe it or not, these things happen all of the time.  While I am not saying that no case should ever be tried, because sometimes trials are necessary, if you want to ensure a costly trial that may not go well for you, try the things on this list.  And if it is your day in court that you want, be careful you wish for.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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.

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Just over a year after the New Jersey Supreme Court changed the standard to be applied in removal, or interstate relocation, cases, the Appellate Division in Dever v. Howell (an Appellate Division set to be published and, thus, will be precedential) is here to remind us that the burden to show cause for the proposed removal is not optional, cannot be an afterthought, and cannot be shifted to the party who opposes the move.

N.J.S.A. 9:2-2’s Cause Requirement and Bisbing

As a refresher, N.J.S.A. 9:2-2 is the New Jersey statute that addresses intrastate removal and provides as follows:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.  The court, upon application of any person on behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.

Put another way, if you wish to relocate out of New Jersey with your children, but the other parent does not agree, then the only way that you can engage in the desired removal is to file an application with the Court.  The Court may only grant the application if sufficient “cause” for the move is shown.  The purpose of the cause requirement is to preserve the rights of the other parent and the relationship between that parent and the children.

The definition of “cause” was the subject of the much-talked about August 2017 New Jersey Supreme Court decision, Bisbing v. Bisbing, 230 N.J. 309 (2017).  Prior to Bisbing“cause” meant different things depending on whether the party who sought to remove the children out of state was the parent of primary residence for the children, or whether there was a truly shared parenting arrangement.  Under the now defunct Baures v. Lewis standard, the Parent of Primary Residence had a less onerous burden to show cause, and needed only prove that 1) the requested move was being sought in good faith; and 2) that the requested move would not be inimical to the child’s best interests.  In cases where there was truly a shared parenting arrangement (i.e. neither party was deemed the “parent of primary residence”), a request to relocate with the children was treated as an application to modify the existing custody arrangement, and the court was required to conduct a best interests analysis to determine if such a modification was appropriate; if so, then this would serve as sufficient “cause.”

In Bisbing, the Court did away with these distinctions and essentially leveled the “cause” playing field.  Now, regardless of the type of parenting arrangement in place, “cause” is demonstrated by showing that the proposed move is in the best interests of the child.  In making this determination, the Court is to be guided by the statutory factors outlined in N.J.S.A. 9:2-4 which are the lodestar of every custody determination; however, the court is not limited to these factors in its analysis.  Indeed, the Bisbing Court specified that “[a] number of the statutory best interests factors will be directly relevant in typical relocation decisions and additional factors not set forth in the statute may also be considered in a given case.”  Any “additional” factors would be specific to the circumstances of the individual case.

Dever v. Howell and the Cause Requirement in Action

In a newly published (i.e. precedential) decision, the Appellate Division examined the cause requirement.  In this case, Mr. Dever and Ms. Howell had two children together.  Although Mr. Dever was the parent of primary residence, the parties shared joint legal custody.  In 2015, Mr. Dever considered relocating to Florida with the children, and the parties engaged in negotiations around that proposed move, including a parenting time schedule for Ms. Howell.  Although they were able to enter into an agreement in May 2015 regarding Mr. Dever’s proposed move to Florida with the children, ultimately he chose not to go, and he and the children remained in New Jersey.

In November 2016, Ms. Howell filed an application with the Court seeking overnight parenting time with the children.  The parties began to negotiate, and agreed to ask the Court to wait to hear Ms. Howell’s application in the hopes that they could resolve the issues amicably.  However, three days before the judge was to hear the motion, Mr. Dever told Ms. Howell that he and the children would be moving to South Carolina the next morning.  He offered Ms. Howell ten minutes to say goodbye to the children.  Despite Ms. Howell vehemently objecting, he moved the children to South Carolina without her consent, and without a court order permitting him to do so.

Ms. Howell ultimately filed an Order to Show Cause (an application seeking emergent, or immediate, relief from the Court) seeking the return of the children to New Jersey.  After a trial, the Superior Court judge found that Mr. Dever had intentionally removed the children from New Jersey without Ms. Howell’s consent and without filing an application so that the Court could determine whether there was cause for the move, in violation of N.J.S.A. 9:2-2.  The Court (correctly, in this writer’s opinion) found that the May 2015 agreement that the parties entered into for the removal of the children to Florida did not signify an agreement for them to be removed to South Carolina, as Mr. Dever claimed.  The judge ordered Mr. Dever to return the children to New Jersey.

Mr. Dever asked the Superior Court to reconsider his decision and, when that was unsuccessful, Mr. Dever appealed.  In both cases, he argued that the judge could not compel him to return the children to New Jersey from South Carolina without requiring Ms. Howell to show cause for him to do so.  In other words, he argued that – now that the children had been living in South Carolina for some time – the burden to show cause should shift to Ms. Howell to show that it was in the children’s best interests to return to New Jersey.  On appeal, Mr. Dever argued that N.J.S.A. 9:2-2 did not require him to obtain an order before moving.

The Appellate Division, rightfully, shot down Mr. Dever’s claim that he could remove the children without consent or a court order, and then force the other parent to demonstrate that it is in the children’s best interests to return to New Jersey:

According to plaintiff’s logic, defendant would need to file a motion to return the children, who he had removed in violation of N.J.S.A. 9:2-2, and as part of that motion, assume the burden.  Such an approach would encourage individuals to first remove children from this jurisdiction, then later seek court approval.  When the other parent objects beforehand, the process envisioned by N.J.S.A. 9:2-2 is for the parent seeking to relocate to first apply for an order permitting relocation, establish “cause,” then relocate only if permitted by the court.  The process does not permit a parent to show on an application to return the children that it would be in their best interests to do so.

When the other parent objects, the parent seeking removal of the children has the ultimate burden of proof by the preponderance of the evidence.  Requiring the burden of proof to shift to defendant to show that it would be in the children’s best interests, as a condition precedent to returning them to New Jersey, ignores the Legislature’s reason for requiring a preliminary determination of “cause” under N.J.S.A. 9:2-2 before the actual removal.  It is to “preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.”  Bisbing, 230 N.J. at 323 (citations and internal quotation marks omitted).  Under the facts of this case, preserving defendant’s rights to maintain and develop her familial relationship with the children required – by the plain text of N.J.S.A. 9:2-2 – that plaintiff first obtain an order, before removing the children, by showing “cause” existed for the relocation to South Carolina.

The Appellate Division made clear here that the old adage, “act now, and ask forgiveness later” does not apply in removal cases.  In order to carry out the intent of the statute – to preserve the relationship between the non-custodial parent and the child – one has to either obtain consent, or show cause before a court before the move occurs, not after.

Parents considering an interstate relocation with their children from New Jersey should take heed.  If you move with your children out of New Jersey without obtaining consent or a court order, you will very likely be required to return the children.  But even worse, when the Court ultimately does decide the issue of whether the move is in the children’s best interests, it may ding you for having taken matters into your own hands and moved without going through the proper channels.  Arguably, a failure to do so is a good indicator to the Court that you are not willing to co-parent or consider the child’s relationship with the other parent, and that will undoubtedly cause the Court to hesitate to allow the move.


 

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

A judge’s favorite line when custody is an issue is some variation of the following: No one is better equipped to make decisions about your children than their two parents, and certainly not the judge who does not know your family from the next family in line.  They are not wrong, and they will do whatever they can to have parents even in the most acrimonious of cases resolve custody issues to avoid tens of thousands of dollars, and months upon months, on custody evaluations and a custody trial.  Of course this is not always possible, but the requirements for alternative dispute resolution start almost at day one after filing the divorce complaint.

Whether you are married and commencing the divorce process (dissolution docket), share a child in common but have never been married, or are simply seeking to enter a custody arrangement but not get divorced (non-dissolution docket), the Court Rules require that parents attend Custody and Parenting Time Mediation at the outset of litigation.  This is a free session held at the courthouse, without attorneys present, during which a courthouse mediator assists parents in reaching an agreed upon custody arrangement and parenting time schedule.  If successful, the mediator will draft an order for review.  Even when the court is not involved, counsel will often attempt to resolve custody and parenting time issues prior to finances. This prioritization is designed to ensure that your children are not stuck wondering which parent they will be with at what time, and the parents are not incentivized to get a child on his/her side.  The schedule also helps the parents understand what free time they have and/or how they may be able to manage their work schedule.

The agreement, order or judgment fixing custody and parenting time is generally the most important document entered in your matter – it provides guidelines to live by for years until the emancipation of your children, absent any substantial change in circumstances along the way.  Given its importance, the agreement, order or judgment should hit all the points that are essential to you… this can save you future head and heartaches for having to return to court or other forms of dispute resolution over aspects that may be missed.   They say that when an agreement is reached, each party will be a little happy and a little sad – that’s the nature of compromise – but the feeling you want to avoid is “oops… forgot about that” (especially when you do not have a co-parent who will readily amend the agreement)!

When our clients are preparing to resolve custody, whether in private or court ordered mediation, we prepare them with a Custody and Parenting Time Plan – essentially their wish lists.  This plan is designed to remind clients what they want to address, rather than have a cookie cutter agreement or order prepared.  Some courts require the submission of this plan prior to the mandatory mediation session, but not all do.

Whether you are attempting to resolve these issues in the above-described mediation session, or simply with your co-parent via discussion, with attorneys, in private mediation, etc., or even as part of a global divorce resolution, here is a checklist that we recommend you review before creating your wish list:

  • Legal custody with time periods for joint decisions. Legal custody is decision making authority about your child(ren)’s education, health, safety and general welfare.  In most cases, this is a joint decision making authority.  Consider including the requirement to discuss such issues with each other and even a time period by which the parents have to advise each other of new developments, and when responses are due for certain requests, i.e.: making a medical appointment or enrollment in a desired activity.  The sharing of such expenses are generally dealt with in the final divorce agreement or judgment.  Always consider adding into the agreement requirements for mutual respect, cooperation with facilitating the schedule and the child(ren)’s love for the other parent, and restraints on involving your child(ren) in the litigation.
  • Commencement date for the parenting time schedule selected. Here, consider being clear as to the commencement date depending on the case.  If the schedule is, for example, alternating weekends and then each parent has two days during the week, consider not just adding the date of the first weekend.  This can lead to confusion as to when the weekdays start if the agreement is reached mid-week.  If you are silent on when the schedule commences, then the default will be the date of the agreement.
  • Location for pick up and drop off. This will also help define who does the driving – an important issue in recent a blog post by Sandra C. Fava, Esq., just last week.  More and more we are seeing and creating schedules with pick up and drop off at the child’s school, camp and/or extracurricular activity.  This will not always be the case as some alternating weekend schedules end on Sunday instead of Monday, some parents do not have any weeknight overnights, etc.  This leads to the next point…
  • …Alternate location when the initial location is not available. For example, if pick up is at school, camp and/or extracurricular activity, build in the location for when such events are not in session.
  • Time for pick up and drop off… In some cases, consider being specific on what time the other parent is expected to arrive and/or drop off your child(ren). You can even build in a provision about being late if you are dealing with a co-parent who often is, such as a required text message when either parent is going to be more than X minutes late.
  • You guessed it – add in the alternate time if the event is not in session (i.e.: pick up after school or 3 p.m. when school is not in session). Seems simple but the alternates are easy to forget and can lead to stressful situations!
  • Driving to activities and appointments. Consider including a provision indicating that the parent exercising parenting time is required to drive the child(ren) to/from any and all activities and appointments held during such time.  It doesn’t hurt to consider including that each parent can attend such appointments and activities regardless of the parenting time schedule.  This may differ in certain circumstances and acrimony level.  You can even build in who sits on home/away bleachers.
  • Right of first refusal, meaning when the parent scheduled to exercise parenting time is not available for a defined period (i.e.: certain number of hours or overnight), then the other parent has the “first right” to have that time with their child. A third party cannot be contacted to “babysit” unless the other parent does not elect to use such right to the time.  Here, consider building in time periods required for the parent to offer this right, and the other parent to respond.
  • Holiday schedule. Sometimes this schedule will be an addendum added at a later date if you cannot agree at the time that you agree upon the regular schedule.  However, if you can make the first agreement all-inclusive, you will not have to revisit the issue.  You want to include the location and times for pick up and drop off here, as well.
  • Defined amount of vacation parenting time. The amount of time usually depends upon the child(ren)’s age(s), but also consider including whether the weeks can be consecutive.  Other options include adding a time period under which you have to provide notice to the other parent of your desired weeks for vacation time, priority on who selects the time first each year, language regarding taking the children out of the state or country, passport-related cooperation, and even whether vacation has to even include one parent traveling for it to actually be considered vacation parenting time.
  • Alternate arrangements when the schedule results in one parent having three consecutive weekends. Typically, holiday and vacation parenting time will trump regular parenting time, but it is something to discuss if it is what you want.  If it’s on your wish list, include a provision indicating that neither parent shall have three consecutive weekends and, if the holiday/vacation time would result in such a schedule, then the first or last weekend of the block will be switched so that each parent has two weekends in a row.  This avoids having to “re-alternate” weekends thereafter.
  • Amount of contact that each parent has with the child(ren) when the other parent is exercising parenting time (i.e.: telephone, Skype, FaceTime, etc.). Depending upon your child(ren)’s age, this may just be reasonable time as desired.   However, if you are concerned about having your time usurped by the other parent continually contacting your child(ren) during your time, you may want to include a once or twice per day allotment.  If your child is too young to use the device alone and you need to coordinate the contact, then you should consider building in a time, such as morning and evening if that works for everyone’s schedule… Again, build in what happens when the agreed upon time is unavailable on a given day.
  • Radius clause. This can be a tricky one. Custody and parenting time in New Jersey is always modifiable because it is based upon the best interests of your children and that may differ over time with a substantial change in circumstances.   Often, these schedules are reached when everyone is still local to each other or even under the same roof, but that may not always be the case.  It’s important to consider how moving a certain distance away from the other parent may impact your child(ren)’s best interests. In other words, how far is too far?  That’s a personal question, considering many factors, including the age of the child(ren) and frequency of parenting time transfers.  For example, if you share equal parenting time with pick up and drop off at school, then what is the maximum commute your child(ren) should have on a school day?  How will this impact activities after school or even a job?

In the recent unpublished decision of B.G. v. E.G., the Appellate Division vacated a provision within the trial court’s Order requiring the parents to live within fifteen miles of each other.  The case was unique case in that one parent was designated as the parent of primary residence (“PPR”) for two children and the other parent was designated as PPR for their third child.

The radius clause was entered following a divorce trial during which a custody expert testified that the parties should live within thirty minutes of each other because “it would be ‘optimal if the children did not change their friends, their locations, their habits.’”  Pursuant to the decision, the court also considered their children’s testimony,  daily exposure to both parents and extensive time the parents spent with their children.  In vacating the radius clause, the Appellate Division opined that the geographic location was not supported by substantial credible evidence.  Specifically, it was based only on the expert’s subjective opinion – no testimony was offered about geographic location, there was no finding that such limitation was in the children’s best interests, and other methods of maintaining contact were not explored.  Notably, the Appellate Division specifically opined that a radius clause did not restrict the objecting parent’s “right to travel” by way of a constitutional law argument.  Given that the objecting parent did not present other constitutional arguments, the Appellate Division did not further delve into the constitutionality of the radius clause.

Thus, the decision infers that although the radius clause here was not supported by enough evidence presented at trial, a radius clause in another matter can be upheld as constitutionally valid if the constitutional argument presented is a restriction on the right to travel.  However, perhaps another constitutional argument may prevail.  I would not be surprised if this issue arises again with more and more shared parenting time arrangements that require a closer geographic proximity… keep an eye out!

So, what is the takeaway?  Keep this checklist for your wish list… from decision making authority to the location that works best for the schedule, there is a lot to think about.  It is natural to forget a few things when you are in a mediation session, having a conversation or even preparing for litigation.  Make your wish list.  Save your wish list.  Craft your wish list to fit your family if the cookie cutter case is not for you.  After all, you are creating this guideline to save yourself time, money and stress in the future… why not ask for what you want?


Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

It’s ok if you missed my New Jersey Law Journal article “Helicopter vs. Free Range Parenting: Endorsement of Parenting Style in the Law” published July 13, 2018. It’s been a busy summer. Now that you’re back in the swing of things, take the time to read this. I hope you’ll agree it provides an interesting perspective of the current state of the law in NJ and where we may be headed….

 

Once a parenting time schedule is established, parents’ next concern is the logistics with pick-up and drop-off.   Even with a parenting time schedule memorialized issues arise: lateness, inconvenient locations, interference with children’s activities, etc.   Most times these issues can be resolved amicably without judicial intervention.  But occasionally an application must be filed with the Court to address these issues.

Recently, in the unpublished appellate decision of Devorak v. Devorak, A-4325-16T2,the Appellate Court reviewed such a case.  The defendant in Devorak had filed a post-judgement motion to change the previously agreed upon driving responsibilities for visitation, amongst other issues.  At the time of divorce, both parties resided in the same town and they agreed that they would share alternate weekends for parenting time with the child and the defendant would pick up their daughter after he was done with work on Friday evening and bring her back on Sunday.  Defendant further agreed that he would “be responsible for all transportation for his parenting time, unless other arrangements [were] mutually agreed upon by the parties.”

Plaintiff later moved to New York City, but on November 22, 2013, the parties entered into a consent order where she agreed to relocate to New Jersey, and defendant agreed to temporarily provide transportation to and from his weekend parenting time until plaintiff moved back to New Jersey.  However, the consent order did not address the parties’ driving responsibilities upon plaintiff’s relocation to New Jersey.  Thereafter, plaintiff moved to Roseland, New Jersey and defendant moved to Ewing, New Jersey.  On September 20, 2016, defendant filed a motion seeking an order compelling “[t]he parties to share equally the driving responsibilities regarding parenting time,” amongst other issues.  Plaintiff cross-moved  for an order compelling defendant to “be required to do all the traveling in connection [with] his visitations with the parties’ child . . . ,” amongst other things, and argued that defendant received the benefit of his bargain in that he did not have to pay alimony and paid “modest” child support in return for doing all of the driving.

Despite Plaintiff’s arguments, the Judge determined that “it [was] fair and equitable [for them] to share in the transportation responsibility[,]” and granted defendant’s motion for the parties to “equally share driving responsibilities for parenting time . . . .”  The judge further ordered the parties to “agree [to] a pickup and drop off location equidistant between their current residences” of Ewing and Roseland.  In rendering his decision, the Judge reviewed the history of the parties’ residences from the time of the final judgment of divorce, as well as earlier orders dealing with parenting time.  On appeal, the Appellate Court stated that it agreed with the trial court’s decision for the reasons cited by the trial court judge, while also dismissing the appeal on procedural grounds.

Here is case where the parties bargained for a driving schedule at the time of their divorce, but due to subsequent decisions by the parties, including moving, the Court determined that the drop off logistics should be altered, despite the parties prior agreement. Whether or not you agree with the Court’s decision on this, the lesson to be learned is that these issues must be addressed with clear provisions at the time of negotiation.  Being amicable with a former spouse is certainly the best way to co-parent, however it is smart to also be prepared for future circumstances to the extent they can be planned for.  Driving responsibilities is one of those such issues.

Remanding a 2017 trial court decision in a renowned same-sex custody matter, the New York Supreme Court, Appellate Division, held yesterday in the Matter of K.G. v. C.H., that while a non-biological, non-adoptive party to an adopted child did not have standing as a “parent” under New York Domestic Relations Law Sec. 70 to pursue custody and visitation based solely on a preadoption agreement reached during the parties’ relationship to adopt and raise a child together, the trial record was incomplete as to whether such standing could be achieved based on an equitable estoppel theory.

A brief history of the extensive fact-pattern is worth noting here, since the Appellate Division’s affirmance of the trial court’s conclusion that K.G. lacked standing as a parent based on the preadoption agreement was essentially limited to the facts of this case.

The parties were in a romantic relationship that concluded in December, 2009.  In 2007, they agreed to internationally adopt and raise a child together.  The parties’ planned for C.H. to complete the adoption, the child would arrive in the United States, and K.G. would second adopt the child to become a legal parent.

  • When the parties’ relationship ended, no child for adoption had yet been identified by the adoption agency.  C.H. argued that when the parties’ relationship ended, so too did the preadoption agreement.  K.G. disagreed and argued that the agreement, once made, conferred standing upon her as a parent to file a petition for custody and visitation.
  • Extensive testimony was taken at trial regarding the nature of the agreement, the parties’ relationship, and the parties’ respective intentions regarding whether such agreement survived the relationship’s conclusion in 2009.
  • In March, 2011, the adoption agency identified and offered a child to C.H. for adoption.  C.H. adopted the child and K.G., despite the relationship’s demise, developed a loving and affectionate relationship with the child.

Based on the above general facts and underlying details developed at trial, the trial court held that the “parties’ mutual intention to raise an adopted child together did not survive the end of their romantic relationship.”  As a result, the trial court, as affirmed by the Appellate Division, rejected K.G.’s argument that the mere creation of the preadoption agreement conveyed standing upon K.G. to seek custody and visitation with the child.  In so affirming, the Appellate Division noted that the trial court’s decision did not mean that – in every case – the mere end of a romantic relationship does not, in and of itself, terminate the plan to adopt and raise a child together.  Rather, said plan terminated under the specific facts and circumstances at issue.

The Appellate Division also held that the trial court’s ruling on this component of its decision was consistent with the 2016 Court of Appeals seminal decision in Matter of Brooke, which expansively defined who is a “parent” under New York’s Domestic Relations Law to include non-biological, non-adoptive parents and, as a result, who has standing to seek custody and visitation of a child.  The Appellate Court provided:

Contrary to K.G.’s arguments, this legal analysis does not eviscerate Brooke.  If the parties have a plan in place when a particular child is identified, then they become parents under Domestic Relations Law Sec. 70 at that time, with standing thereafter to seek custody/visitation in the event of a change in the household.

As noted above, however, the Appellate Court remanded so that the trial court could more fully develop the record and consider K.G.’s position that she has standing as a “parent” under an equitable estoppel theory designed to ensure fulfillment of the child’s best interests  stemming from a recognized parent-child relationship.  Specifically, “under Domestic Relations Law Sec. 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a non-biological, non-adoptive adult” with the emphasis placed on the child’s point of view.  the key is whether the relationship between the subject adult and child “rises to the level of parenthood.”

As a result of the incomplete record, the Appellate Court could not rule on what factors a court should consider to establish “parent” status under the estoppel concept.  In so holding, the Court found that C.H. had a right to be heard in opposition to the estoppel theory, and the child’s voice was not heard (K.G.’s requests during the trial court matter for the appointment of an attorney for the child, a forensic evaluation and/or a Lincoln hearing where the child undergoes questioning by the judge in private).

Developments in this newsworthy case will continue to unfold as the trial court conducts further proceedings in a manner consistent with the Appellate Court’s ruling.

 

Although the typical matrimonial practitioner may not undertake Division of Child Protection and Permanency (“Division”) on a regular basis, we oftentimes face situations wherein a trial court, in a related matrimonial proceedings, determines Division investigations to be relevant to determinations of custody and parenting time before it. The recent case of DCP&P v. R.R., — N.J. Super. — (Mar. 19, 2018)(slip. Op. at 13), is an interesting new opinion that offers some guidance as to whether these types of investigations may be rendered reliable and when they may be challenged.

There, the subject father appealed from a finding of the Division following an investigation initiated at the request of a Family Part judge in a related matrimonial proceeding, that allegations he abused or neglected his daughter, E.R., were “not established.” In assessing whether to accord deference to such finding, the Appellate Division noted several omissions in the Division’s screening summary, including that the court’s concerns were inaccurately conveyed to the Division; the screening summary inaccurately identified the child involved; and, inaccurate details were recorded.

The Appellate Division ultimately concluded that the Division’s finding was “arbitrary and unreasonable, because the Division failed to consider essential documents and relevant facts,” including failing to obtain and review submissions in the matrimonial matter; or,  any testimony presented at the hearing on the return date. In so finding, the Court stated:

Although the record does not include these documents, it was incumbent upon the Division in this case to consider them as part of a reliable investigation…We recognize that the Division’s regulation governing “requirements for an investigation,” N.J.A.C. 3A:10-3.1, does not require review of relevant court documents. See also N.J.A.C. 3A:10-2.4 (evidence needed to support a finding). However, we cannot have confidence in an investigation – nor are we obliged to defer to the resulting finding – where the Division overlooked such relevant information under the circumstances of this case. Cf. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 386 (2013) (“failure to consider all evidence in a record would perforce lead to arbitrary decision making” and a “decision based on a complete misperception of the facts . . . would render the agency’s conclusion unreasonable”); see also Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (stating that an appellate court’s deference to an agency decision “is premised on our confidence that there has been a careful consideration of the facts in issue”).

Where to use this type of case: If a trial court determines a Division investigation to be of import to its underlying findings as to custody and parenting time without examining the quality of the investigation done, particularly where the Division’s finding lacks fair support in the investigatory record that the Division compiled.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of 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 etbaer@foxrothschild.com.