Visitation/Parenting Time

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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.

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey and Manhattan.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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Sometimes, the location of a case – for one reason or another – can be just as important as anything else.  Perhaps the law is different and more beneficial to one side in a particular location; possibly, one place is simply more convenient for purposes of introducing evidence at a trial or merely having all parties be present in court.

In my practice, I have seen this issue come up more and more.  With our increasing mobility, the questions of where a case should be conducted and what court has jurisdiction has become increasingly complex.  This is especially so in cases involving children who reside with the primary parent in another state from the other parent.  Often, this can result in a tug of war between the courts in both states over where post-judgment issues related to the children should be addressed.

One recent case out of the trial court in Essex County squarely addressed this issue.  In B.G. v. L.H., the parties were divorced in New Jersey, but had specifically agreed when they divorced that the mother and children could relocate to Massachusetts, which they did.  The agreement also called for a parenting time schedule which afforded the father parenting time in Massachusetts and in New Jersey, which he exercised.  Significantly, the agreement did address the question of jurisdiction quite clearly, stating:

Each of the parties hereby irrevocably consents and submits to the jurisdiction of the courts of the State of New Jersey for any future custody and parenting time disputes, so long as one parent resides in New Jersey.

After the wife and children relocated to Massachusetts, the husband continued to reside in New Jersey and, as noted above, to exercise parenting time with the children in New Jersey. Eventually, issues arose regarding the children and their time with their father.  This included two complaints to the Massachusetts Department of Children and Family by one child’s teacher and the other child’s doctor.  The Massachusetts DCF conducted an investigation and concluded that the allegations were unsubstantiated.  However, this prompted the Mother to institute proceedings regarding custody and parenting time in the Probate and Family Court for the Commonwealth of Massachusetts.

And so the basic question arose:  Should the custody and parenting time issues that arose be decided by a Massachusetts Court, or a New Jersey Court?  In this particular case, the answer may seem obvious.  The parties agreed, “irrevocably,” that as long as either of them resided in New Jersey, the courts of the State of New Jersey would have jurisdiction over custody and parenting time disputes.  It was not disputed that the Father continued to reside in New Jersey.  Therefore, based on their agreement, it would seem that New Jersey should continue to have jurisdiction over custody and parenting time issues.

However, the trial court judge went further and conducted an analysis of the issue as though there was no provision in the parties’ Matrimonial Settlement Agreement which addressed this issue.  This is because only the Court can determine if it should relinquish jurisdiction, even where an agreement exists (although the existence of an agreement is an important factor the court must consider, as discussed below).  Judge Passamano’s opinion provides a good overview of how the question of jurisdiction over custody and parenting time issues should be addressed under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA):

  1.  Did New Jersey acquire continuing, exclusive jurisdiction over child custody issues?
  2. If so, have circumstances changed so as to divest New Jersey of continuing, exclusive jurisdiction?
  3. And, if circumstances have not changed, then is New Jersey no longer a convenient forum to decide these issues, and is the other state the appropriate forum?

Notably, this procedure prevents a party from doing what the Mother in B.G. v. L.H. tried to do – simply filing an application to modify custody/parenting time in another state’s court.  The state court which originally had jurisdiction must conduct this analysis and affirmatively relinquish its jurisdiction.

Part 1:  Continuing and Exclusive Jurisdiction

Generally speaking, a Court acquires continuing and exclusive jurisdiction as to custody issues when it makes an initial custody determination, or when it modifies a custody determination made by another state as authorized by law.  In B.G. v. L.H., the initial custody determination was made in New Jersey, by a New Jersey Court.  Therefore, the Court proceeded to the next question.

Part 2:  Change of Circumstances

According to the NJUCCJEA, circumstances will have changed so as to divest New Jersey of jurisdiction when either of the following occur.

  1.  A NJ court determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with New Jersey and that substantial evidence is no longer available in New Jersey concerning the child’s care, protection, training, and personal relationships; or
  2. A court of NJ or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in New Jersey

The question of whether there is a significant connection with the state cannot merely be based on whether one party continues to reside in NJ.  Instead, it goes to the relationship between the child and the parent that remains in NJ.  This is where the distinction between what the parties in B.G. v. L.H. contracted for and what the law dictates lies.  The agreement between the parties called merely for the continued residency of one parent in New Jersey, but absent an agreement, the Court must look deeper at the relationship between the parent and the child.  The judge in B.G. v. L.H. opined that, since the children in that case exercised parenting time with the Father in NJ, there existed the requisite significant connection in any event.

Part 3:  Which is the Convenient Forum?

Having decided in favor of New Jersey on the first to issues, a New Jersey Court can still determine that it should relinquish jurisdiction if it finds that it is not a convenient forum, AND that the other state is the appropriate forum.  Pursuant to N.J.S.A. 2A:34-71(b), the factors that the Court considers in answering this question are:

  1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  2. The length of time the child has resided outside of the State;
  3. The distance between the court in this State and the court in the state that would assume jurisdiction;
  4. The relative financial circumstances of the parties;
  5. Any agreement of the parties as to which state should assume jurisdiction;
  6. The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
  7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
  8. The familiarity of the court of each state with the facts and issues of the pending litigation.

Again, in B.G. v. L.H., Factor 5 makes it impossible to ignore the fact that the parties explicitly, knowingly, and voluntarily, entered into an agreement that New Jersey would continue to have jurisdiction over custody and parenting time disputes so long as either of the parents (obviously, the Father in this case) merely resided in New Jersey.  Although the Court must give some due consideration to the other factors, so long as the best interests of the children – which must always be paramount – are not deleteriously affected by jurisdiction remaining in New Jersey, it would be hard to argue that there should be any other result in the face of such clear cut language in the agreement.

Practice Issues

The B.G. v. L.H. case provides a good lesson to practitioners about the importance of addressing this issue in agreements, especially if one parent’s relocation to another state may be on the horizon.  If you are on the side of the potentially relocating custodial parent, know that a provision like the one the parties entered into in this case may make it more difficult for your client in the event he or she wants New Jersey to relinquish jurisdiction.  By the same token, if you represent a party who may eventually be defending against an attempt to remove jurisdiction to another state, language like that included in the agreement in B.G. v. L.H. will be helpful to your client.

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.

Thankfully, sexual abuse allegations against parents do not often arise in the context of a divorce typical. However, when those scenarios do arise, they bring lawyers, litigants and judges alike in to unchartered territory where they sometimes have to sift through various accounts to get at the truth of the matter.

Twenty years ago, the Appellate Division succinctly described the dilemma Courts often face when dealing with sexual abuse allegations:

This case is an example of a tragic but recurring dilemma in certain family court cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of imagined or even fabricated charges against a parent, especially when raised during the pendency of divorce proceedings. For a parent to stand accused of such an offense is devastating both to that individual, and to the child’s lifelong relationship with the parent. On the other hand, proof of such abuse, especially involving a very young child, is rarely clear, and the potential danger to a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.

[P.T. v. M.S., 325 N.J. Super. 193, 198 (App. Div. 1999)].

In a subsequent case several years later, the Appellate Division in Segal v. Lynch, 413 N.J.Super. 171 (App. Div. 2010) even carved out a cause of action wherein one parent can sue the other for money damages on the grounds of parental alienation when one makes false sexual abuse allegations against the other:

[W]e are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification. Id. (emphasis added).

The recent published decision of E.S. v. H.A., A-3230-14T2 and A-3256-14T2, speaks to a different kind of scenario involving sexual abuse; one where the allegations have been sustained and the parent-child relationship hangs in the balance.

In E.S. the parties had a long history of contentious litigation, involving various domestic violence claims, motions, and the like. Ultimately, the Division of Child Permanency and Placement (DCPP) became involved with the family when allegations were made of sexual abuse against the father as to the parties’ child, Richard.

After various proceedings by the DCPP, at least some of the sexual abuse allegations against the father were sustained.  Thereafter, the mother moved for a suspension of the father’s parenting time.

Following a hearing, the trial court found, by clear and convincing evident, that the father had sexually abused Richard, granted the mother sole legal and physical custody of Richard and denied the father parenting time.  The resulting order further required the father to “comply with certain requirement prior to making any application for parenting time with his some”, including the following:

a.         Admission of wrongdoing;

b.         A psychosexual evaluation by a professional specializing in same; and

c.         Individual therapy.

The father’s subsequent appeal primarily concerned the above requirement that the be required to make an “admission of wrongdoing” prior to making an application for parenting time.  The father argued that requiring him to do so would violate the right against self-incrimination.

Indeed, the right against self-incrimination, although not protected by the New Jersey constitution, is deeply rooted in our jurisprudence and codified in N.J.S.A. 2A:84A-19, which states that every person in New Jersey “has a right to refuse to disclose in an action…any matter that will incriminate him or expose him to penalty…”

Both the United States Supreme Court and our New Jersey courts have consistently held that the state may not force an individual to choose between his or her Fifth Amendment right and another important interest because such choices are deemed to be inherently coercive. It does not matter whether the particular proceeding is itself a criminal prosecution. Rather, “the Fifth Amendment is violated ‘when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.'” State v. P.Z., 152 N.J. 86, 106 (1997).

After a full examination of the case law and surrounding circumstances, the Appellate Division in E.S. reversed the trial court’s decision requiring the father to admit to the sexual abuse allegations prior to making an application for parenting time. Its reasoning was as follows:

Here, the November 2013 and January 2014 orders conditioned any future request by defendant for parenting time upon his admission of “wrongdoing,” which we presume, based on [the expert’s] testimony, means defendant must admit that he sexually abused Richard. Such a requirement compels defendant to waive his privilege against self-incrimination and violates his rights under the Fifth Amendment and our State Constitution.

The Appellate Division further vacated the remaining preconditions that the trial court imposed on the father “prior to any application for parenting time”, reasoning that, “imposition of these other preconditions violated defendant’s right to invoke the equitable powers of the Family Part to modify its order denying him any parenting time.” While the Appellate Division noted that these application may fail absent the father’s efforts to address the issues that the court saw as vital to the reintroduction of parenting time, it made clear that the court should not reach that conclusion in advance of such a request.

Cases involving sexual abuse pose special problems and considerations for our courts.  But this decision makes clear that it is important to note that our judiciary is required to preserve and protect the due process rights of everyone involved in the litigation.

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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.

Last year I blogged on tri-parenting, or the concept whereby three parents agree to raise a child or children together as a family, with regard to the published New Jersey trial court decision of D.G. and S.H. v. K.S. My previous blog post can be found here.

In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. All three parties parented the child and were effectively able to do so for most of the child’s early life, until K.S. announced that she had fallen in love with A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. When the parties’ could not agree on a “tri-parenting plan”, D.G. and S.H. filed a Complaint seeking legal and physical custody of the child, parenting time, and that S.H. (who did not have any biological ties to the child), was the child’s legal and psychological parent.

After 19 days of trial, the Court found that S.H. was in fact the child’s psychological parent (although K.S. also stipulated to this on the eve of trial), and concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. However, the court denied S.H.’s request for legal parentage as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

I concluded my prior post by stating that

With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

19754957 - one caucasian family father mother daughter man dispute reproach in silhouette studio isolated on white background

On March 8, 2017, The New York Supreme Court of Suffolk County also granted tri-legal custody and visitation, in the matter Dawn M. v. Michael M.

In that matter, Dawn and Michael, a married couple, began a polyamorous relationship with Dawn’s friend, Audria. All three parties considered themselves a family and decided to have a child together. Since Dawn was unable to have a child, the parties decided that Michael and Audria would try to conceive. The credible evidence presented to the Court established that all three parties agreed, prior to a child being conceived, that they would raise the child together as tri-parents.

Audria became pregnant and gave birth to a boy, J.M.; however shortly thereafter the relationship between the parties became strained and Dawn and Audria moved out together with J.M. Michael commenced a divorce action against Dawn, and asserted he no longer considered Dawn to be J.M.’s parent.

The court found credible the testimony of Audria and Dawn that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court further found that in all respects, during the first eighteen months of J.M.’s life when Dawn, Michael and Audria all lived together, and thereafter after their separation, Dawn acted as a joint mother with Audria and that they all taught the child that he has two mothers. The Court also conducted an in camera interview with J.M., which left no doubt in the Court’s mind that he considered both Dawn and Audria to be equal “mommies” and that he would be devastated if he were not able to see Dawn.

Although not a biological parent or an adoptive parent, Dawn argued that she has been allowed to act as J.M.’s mother by both Audria and Michael, that she has always lived with J.M., J.M. has known her as his mom since his birth and that the best interest of J.M. dictates that she be given shared legal custody and visitation with him. Audria, J.M.’s biological mother, strongly agrees. Dawn further argued, along with the child’s attorney, that Michael should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents, and that Michael has acted consistent with this agreement by allowing the child to understand that he has two mothers.

The Court found that the best interests of J.M. would be served by granted Dawn shared legal custody, stating that “J.M. needs a continuing relationship with the [Dawn] as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”, and established a tri-custodial arrangement, as Michael and Audria already shared joint legal custody.”

The Court concluded that Dawn, Michael and Audria

created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael]’s assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael]’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that [Michael] should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody…To order anything other than joint custody could potentially facilitate [Dawn]’s removal from J.M.’s life and that would have a devastating consequence to this child.”

Although the issue of legal parentage was not discussed in the New York Court opinion, it appears that the New York Court is as progressive as the New Jersey Court in moving  towards alternative custody arrangements in light of the evolution of today’s families.

Growing up, my siblings and I all played sports. My brother and I were basketball players and my sister was, in no uncertain terms, a track star. Playing sports was a lifestyle in our family, and no one took it more seriously than my father himself, a former basketball player and my toughest coach. My dad was not only an extremely skillful basketball player, but he was a great teacher and I valued all the time he spent with me in the driveway teaching me how to perfect my shot. I like to think this is why he was always my most vocal fan at my games.

No matter how packed the stands were for a Friday night game (my high school had almost 4,000 students), I could tune out every cheer, scream and shout, that is, except of course, my dad’s. He had his share of one liners, “advice” for the referees and positive feedback, but when I wasn’t playing up to his standards (which rival that of Coach K or Jim Boeheim), I was always able to find him in the sea of parents, with two fingers on the bridge of his nose shaking his head in disappointment or somehow hear his “instructions” as to what I could be doing better, over all the noise.

A few distinct memories are as follows: once, when I was about 12, in the middle of a game, my dad, then toting along my much younger sister, came down from the stands over to the bench to tell me that I was playing “so badly” he was going to wait in the car–if that did not instill fear in you to play better, nothing would. It was going to be a long car ride if I didn’t turn that around! Another time a referee told him to start drinking decaffeinated coffee before coming to tournaments. But my favorite was when I missed a few foul shots in a game (which was the equivalent, or worse than, being expelled from school). My dad drilled into my head from a young age the importance of foul shots, so after the game, I was not allowed to come inside the house until I made 25 foul shots, in a row. I still remember that cold December evening, standing outside in the dark on the chalk-drawn foul line he made, taking shot after shot in the glow of the overhead garage light. Once you learn how to make foul shots without feeling your hands, it becomes second nature.

In any event, everything my dad did (except maybe his “advice” towards the referees), taught me how to be a better basketball player, a better team player, work harder and, subsequently/somehow, positively shaped me into the person I am today. And while he was tough, I never once felt discouraged or embarrassed; instead he motivated me to work harder. After all, by high school, I was our team’s technical foul shooter.

But all too often, parents cross the line from teaching their children to be better athletes to acting inappropriately, disparagingly, and disruptive not only towards their own children, but towards their children’s team and coaches.

65898085 - rear view little league baseball team sitting on bench

In the unpublished (non-precedential) matter of D.W. v. M.W., the mother of a 7-year old child filed a motion seeking to prohibit her ex-husband, the child’s father, from attending their son’s coach-pitched Little League baseball games due to what she alleged, was “inappropriate public criticizing and disparaging of the coach’s baseball-related decisions and abilities in an embarrassing and demeaning manner”. According to the mother, the father routinely made negative and demeaning comments at the baseball field, that their 11-year old daughter then began repeating, that other parents witnessed this inappropriate conduct, and that the father even took his commentary from the baseball field to FaceBook. The child’s father denied these allegations.

After recognizing the cultural importance of Little League baseball, Judge Jones took judicial notice “that the results of particular Little League games are not nearly as significant as the underlying goal of developing a child’s ongoing personal character in a positive fashion. In this respect, there is a paramount importance in maintaining the surrounding environment at the Little League field as one which promotes respect, integrity, responsibility, discipline and self-restraint. Ironically, however, a great challenge in meeting these goals often comes not from the participating children, but from parents. While fathers and mothers come to games and practices for the alleged purpose of supporting their sons and daughters, there are times when overly critical, judgmental and interfering parents invariably end up acting in an objectively inappropriate manner, which can be highly embarrassing and emotionally detrimental for their own children, and others as well.”The “social phenomenon of out-of-control sports parents is often informally referred to as ‘Little League Parent Syndrome”.

41648699 - summerlin, nevada - june 4: a summerlin little league girls game on june 4, 2015, in summerlin, nevada. two players warm up at a summerlin little league game in summerlin in nevada.

But when and where does the Court intervene in this matter? A parent’s inappropriate and disruptive conduct, not only at the ball field but in any public venue, may be directly contrary to the best interests of their child, and in cases before the family court, a child’s best interests, rights and needs are greater than that of either parent.

In the case at bar, Judge Jones made it clear that he could have set the matter down for a costly and elongated plenary hearing, but decided to undertake what he referenced as the “fresh start” approach. The “fresh start” approach does not make any finding as to the credibility or accuracy of either party’s viewpoints, but requires that both parents submit to the same “(a) parameters of parental conduct at the ball field; and (b)… act at all times in a manner which is consistent with the children’s best interests as well as the true purpose of organized youth sports in the first place.”

The parties were also directed to follow all league rules concerning parental conduct and additionally, adhere to the following parameters not only at the site of the games and practices, but also on social media:

1) A parent may not publicly harass or demean his or [her] child or any other child;

2) A parent may not publicly harass or demean any coach or official. If a parent has a particular issue which he or she wishes to communicate with a coach or official, then absent a legitimate emergency, the parent may address the issue with the coach or official, privately, either by letter or by any other method deemed acceptable by league officials, including but not limited to, if reasonably necessary, an in-person meeting, outside the presence of children, and consistent with any existing league rules, with all such communication conducted in a mature, diplomatic, and respectful manner;

3) A parent may not publicly harass or demean any other or any parent or other spectator in the stands; including but not limited to that parent’s separated divorced, or otherwise estranged spouse, or such person’s guest(s). A child’s sporting event is a wholly inappropriate place for any public domestic disputes of any kind;

4) A parent who attends a child’s youth sporting event or practice has an affirmative obligation to act in a manner which upholds the dignity of the event. In particular, a parent may not act in a manner which is directly contrary to the core purposes of the event itself, such as teaching children concepts of maturity, respect, and discipline, and good sportsmanship. A parent who cannot or will not accept these parameters, and who acts in a manner which publicly undermines these core goals and values, may undermine the integrity of the event and the rights of all participating children and other adults in attendance;

5) A parent is to fully comply with all other rules of conduct required by the league or organization in question.

The purpose of the “fresh start” approach is much like the lessons learned from youth sports; there is always a second chance to do better. “With parenting, the reality is that parents who allegedly commit errors or fumbles in raising children, and who end up in court over such incidents, may positively and constructively learn from the entire experience” and make positive changes going forward that are in the best interests of their children. While the “fresh start” approach is contingent upon both parties making positive changes, if they are willing and able undertake this approach, I believe it can be successfully extended to other parenting issues as well. In the right instances, as practitioners, we should be mindful of this approach when dealing with similar parenting issues.

In the case of M.C. v. P.C. (unreported, non-precedential), Judge Jones explores the issues surrounding mid-week overnight parenting time during the school year and its effect on the best interests of the children. In many cases, both parents live close by and are routinely exercising parenting time on weekdays in addition to weekends. While frequent and continuing contact with both parents is almost always positive for the child, it does not come without issue in the post-divorce context. We frequently see cases where one parent refuses to complete homework or take the child to soccer practice during their weekday parenting time.

The facts of this case are simple. The parents have two children, ages 8 and 10. As part of their divorce agreement, one parent was the primary residential custodial parent with the other parent having reasonable and liberal parenting time, to include every Thursday evening overnight into Friday mornings.

The primary parent, who works in the children’s school (but is not their teacher) filed an application to modify midweek overnight parenting time asserting that the children often come to school unprepared on Friday mornings and without their homework completed. It was alleged that the primary parent then has to rush around on Friday mornings assisting the children with completing their assignments before school formally begins. The noncustodial parent obviously denies same, however the Court noted that neither party produced any corroborating evidence so the Court was forced to rely upon the parties own testimonial positions.

In its analysis, the Court took “judicial notice” (meaning something is so well known it cannot be reasonably doubted) that education is one of the most important aspects of a young child’s life. The Court noted that children “need to learn from both parents, as early as possible, that tending to homework, test preparation and general scholastic readiness must take an appropriately high priority in a child’s schedule”.

That said, even in the cases where the parents are entirely cooperative, when the children go back and forth between households, this creates another layer of difficulty in trying to implement these fundamental educational values and maintain consistency. The Court opined while it is conceivable that back and forth parenting time could cause a child to incur a significant distribution and a loss of appropriate focus on meeting scholastic responsibilities, it is not per se harmful or contrary to a child’s best interests. As with many issues that arise in a family law matter, it is fact-sensitive and case specific given that each family and child is unique.

The Court goes on to remind that:
“Shared parenting” means more than simply counting the hours and minutes a child stays under a parent’s roof but also involves each parent meeting his or her responsibilities during such a time rather than unilaterally passing it off onto the other parent. Put another way, a parent cannot insist on simply taking the children for parenting time while siphoning out the parenting obligations which naturally continue to exist during such times. If a parent wants midweek overnight parenting time during a school year, that comes with all of the scholastic responsibility and other midweek obligations, in one integrated package.

The Court noted that although the primary parent’s testimony was persuasive there were evidentiary obstacles insofar as how prevalent the deficiencies that were complained of really were. Was this a situation where the child only missed 1 out of 10 assignments or a situation where the child’s backpack was not even opened with nothing done at all? The Court noted that evidence could have been presented by school records, testimony from teachers, lower test scores or any other evidence of the children’s lack of readiness on Fridays, as compared with other days when the children are in the care of the primary parent.

In sum, the Court found that there was insufficient evidence to make a specific finding that the homework issue was so prevalent as to require an immediate elimination of midweek overnight parenting time but established a helpful protocol for the parties moving forward as to how to deal with the issue of homework.

What can be taken away from this is case is how important it is to be fully prepared when presenting your application to the Court. Had the primary parent produced more corroborating evidence as to the magnitude of the missed assignments (assuming it was substantial), the outcome may have been different. It is always important to seek the advice of experienced counsel when presenting any application (especially an application to modify an existing arrangement/order) to the Court.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.