Visitation/Parenting Time

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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.

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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.

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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.

As we have blogged before, in light of the Constitutional protections given to parents, grandparent visitation is very hard to obtain because the grandparents have to show harm to a child to meet their burden.  What happens, however, if parties agree to grandparent visitation and the parent then either changes their mind or reconsiders decides that the grandparents shouldn’t have visitation anymore?  Must the grandparents then have to prove harm, as if there never was a consent order in the first place because there was no proof that the visitation was necessary to avoid harm to the child.  That is exactly what a trial court, in the case of Slawinski v. Nicholas held.  Note that that basis for the motion to terminate the visitation was a claim that the child was upset by the visits, was not properly cared for during the visits and further, that the grandparent allowed the child’s father to be present at a visit even though his visitation had been suspended by a prior court order.  However, in a reported (precedential) opinion, released on December 6, 2016, the Appellate Division reversed and held that a parent could not unilaterally modify a consent order for grandparent visitation.

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The parent’s attorney argued that she  should not have the burden to demonstrate grounds to terminate visitation inasmuch as the original Consent Order was entered by consent without any judicial findings that the visitation was beneficial. The attorney further contended, “[T]here is no burden that my client has to do anything other than say this is not working out, I tried.” The trial judge agreed and held that since the order was entered by consent, defendant was entitled to terminate visitation unless plaintiff could demonstrate, by a preponderance of the evidence, “that denial of visitation would result in harm to the child.”

In the decision, the Appellate Division provided a concise primer on the state of grandparent visitation, as follows:

We recognize that a parent’s fundamental right to raise a child as he or she sees fit encompasses the authority to determine visitation by third parties, including grandparents. See Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Yet, that autonomy gives way to the need to protect the child from harm. Id. at 115. Thus, “grandparents seeking visitation . . . must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child.” Id. at 88. “If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome.” Id. at 117.

Still, proof of harm involves a greater showing than simply the best interests of the child. Id. at 116 (stating that a dispute between a “fit custodial parent and the child’s grandparent is not a contest between equals[,]” consequently “the best interest standard, which is the tiebreaker between fit parents, is inapplicable”). Substantively, it is a “heavy burden.” Major v. Maguire, 224 N.J. 1, 18 (2016); cf. Fawzy v. Fawzy, 199 N.J. 456, 479 (2009) (“The threat of harm is a significantly higher burden than a best-interests analysis.”). The harm to the grandchild must be “a particular identifiable harm, specific to the child.” Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). It “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent’s death.” Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). By contrast, missed opportunities for creating “happy memories” do not suffice. Mizrahi, supra, 375 N.J. Super. at 234. Only after the grandparent vaults the proof-of-harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details. Moriarty, supra, 177 N.J. at 117.

The Appellate Division then discussed the impact of a consent order on the above law, and held:

But nothing about a parent’s right to autonomy warrants allowing a parent to unilaterally modify or terminate a consent order on grandparent visitation. The parent effectively waives that autonomy by entering into the order, just as a parent waives rights when entering into any other consent order governing custody or visitation. Given our respect for the consensual resolution of family-related disputes and the stability such agreements achieve, modification of a consent order governing grandparent visitation must be considered according to the same Lepis changed circumstances framework applicable to other custody and visitation orders.

The Appellate Division then provided the necessary procedure to follow should a parent wish to modify a Consent Order for Grandparent visitation, as follows:

Consistent with this approach, the court should apply the standard governing grandparent visitation if the movant-parent also succeeds in establishing changed circumstances. That is to say, the court must consider whether or not the modification of a grandparent’s visitation will cause harm to the child, as distinct from considering the best interests of the child.3 If the modification will not cause harm, the court must grant the modification even if the grandparent could show doing so was contrary to the child’s best interests.

When the parent is the movant, the parent bears the burden to establish grounds for modification. See Beck v. Beck, 86 N.J. 480, 496 n.8 (1981) (“[W]hen seeking joint custody after an initial custody determination has been made, even a parent enjoying such a relationship must satisfy the same burden of proof as applies to anyone seeking to change a custody decree, namely, a change of circumstances warranting modification.”); Abouzahr, supra, 361 N.J. Super. at 152 (assigning burden to show change of circumstances and child’s best interests to “party seeking a modification”); Sheehan, supra, 51 N.J. Super. at 287 (stating “the party seeking a modification bears the burden of proof”).

Thus, in a grandparent visitation case, the parent seeking modification bears the burden to prove changed circumstances and that the child would not suffer a particular, identifiable, child-specific harm, see Mizrahi, supra, 375 N.J. Super. at 234, if modification were ordered. Given that a grandparent’s burden to prove harm is more onerous than satisfying a best interests test, the parent’s burden to prove the absence of harm is less onerous than the best interests test. See Moriarty, supra, 177 N.J. at 113 (noting that a best interests test can be satisfied although the child suffers no harm) (citing Watkins v. Nelson, 163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50, 63-65 (2011) (noting that a custodial parent’s burden to prove good faith and lack of harm in order to remove the child is less onerous than a showing of best interests). Once the parent establishes changed circumstances and the absence of harm, the court must grant the parent’s requested modification.

The Appellate Division was clearly wrestling with the long standing public policy favoring the settlement of disputes as juxtaposed against a parent’s constitutional rights as it relates to their children.  That said, one wonders whether a parent would be willing to give up their autonomy, especially in questionable circumstances, if they have will have to expend a lot of time and money to terminate the grandparent visitation in the future.

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Custody Neutral Assessments (CNAs), a mostly South Jersey phenomenon, have been described as a supposed alternate dispute resolution program that was available for high conflict cases that were inappropriate for, or are unable to be resolved, through mediation. This program utilizes several mental health practitioners in the community who meet with the parties, discuss contested issues and make clinical recommendations to the court on how to resolve disputed issues.  The way it was supposed to work is that in the counties that use CNAs, after mandatory mediation fails, the Court was to enter an order appointing an evaluator to perform a CNA.  The parties then were to receive notices as to the time and date of their initial meeting. The fee was nominal compared to a full-blown custody evaluation because the parties are paying for approximately 4 hours of the evaluator’s time.  Each of the parties meet with the evaluator and it is up to the evaluator to determine if it would be appropriate for the children, step-parents, etc. to participate.  Unlike a custody evaluation, there is no psychological testing or psychological evaluations.  The evaluator then issues recommendations to the Court which can include custody, a parenting time schedule, anger management, a drug and alcohol evaluation, and recommendations regarding related issues.  Once the Court receives the CNA, the parties are scheduled for a Case Management Conference at which point the Court determines whether to accept, reject or modify the CNA recommendations.  At this hearing, the party that is dissatisfied with the CNA can request a custody evaluation if the CNA involves a change in custody or custody determination.

43372204 - forensic psychologist indicating word clinician and therapist

However, what was supposed to be a non-binding dispute resolution tool often became some more than that though many practictioners questioned how this could be so.  In fact, when I wrote the Custody chapter in the most recent edition of New Jersey Family Law Practice, published by ICLE, I wrote:

            While this process may be a way to get some level of expert involvement in cases that cannot afford a full-blown evaluation, or a way to ferret out bad-faith, anger driven or other “custody cases” that are not truly bona fide custody disputes, there are certainly causes for concern with the process.  First, given that the CNAs are abbreviated, it seems unlikely, if not impossible that the recommendations being made are based upon a reasonable degree of psychological certainty.  See N.J.R.E. 702, 401 and 402.  See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993); James v. Chevron U.S.A., Inc., 301 N.J. Super. 512 (App. Div. 1997), aff’d 155 N.J. 279 (1998)(which held that Daubert applied in New Jersey).  See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).  As such, they would be legally inadmissible at trial and little more than a net opinion.

Further, if this is a method of alternate dispute resolution, one wonders whether it is proper that the court is being provided with these so-called “recommendations” made after limited involvement with the parties and perhaps no involvement with the children.  To the extent that the process is meant to evoke a settlement, does the reporting of the recommendations to the court violate N.J.R.E. 408?  Though it is clearly not mediation, should a confidentiality standard that applies to mediation also apply to a CNA?  See Lehr v. Afflito, 382 N.J. Super. 376 (App. Div. 2006).  If it is an alternate dispute resolution method that may have binding implications, should there not be heightened procedural safeguards as there are now required for arbitration of custody matters?  See Fawzy v. Fawzy, 199 N.J. 456 (2009).

If and when there become more widespread implementation of CNAs, perhaps some of these questions will be answered.

 

Well, it took almost 5 years since I wrote those words, but the question was just answered by Judge Jones in his unpublished decision in the  case of Serrano v. Urbano released on December 1, 2016 when he held that CNAs were not evidential as an expert report, though the preparer could testify about what was told and “his or her professional impressions and concerns regarding such statements or actions which the assessor personally witnessed and/or experienced in his or her contact with either party during such process, if relevant to the best interests of the child at issue.”

Of note, Judge Jones held that:

A C.N.A., however, is not a “mini-evaluation,” or an “express evaluation”, or a “discount evaluation. Most particularly, the C.N.A. generally does not involve any forensic psychological testing of either party. Nor are there generally any bonding evaluations between the parties and child. In fact, the assessor may not even meet the child, and may not include an analysis of the statutory custody factors under N.J.S.A. 9:2-4. Rather, unless otherwise agreed, the assessor generally meets with the litigants for a limited period of time, converses with them separately, and renders a report .

More importantly, the Judge held:

When an expert has not conducted a forensic custody evaluation to serve as the foundation for a recommendation, any “expert forensic opinion” rendered by the professional regarding custody, as rendered in the content of a C.N.A., cannot be admitted into evidence as the results of a full forensic evaluation, because no such evaluation ever took place. An expert forensic opinion on custody without a forensic evaluation is essentially a net opinion. Moreover, the assessor in this case, though a mental health professional, was not a forensic psychologist.

That, however, is not the end of the analysis because the Judge also held that:

Under the doctrine of limited admissibility, however, the testimony and C.N.A. report of the assessor is admissible in part on the issue of the parties’ words, actions and conduct during the C.N.A. process, as well as any impressions and concerns the assessor experienced in witnessing same.

The first part of that essentially renders the preparer of the CNA a fact witness which seems consistent with the Rules of Evidence in terms of admissibility.  However, most fact witnesses are not permitted to testify about their opinion. Since impressions and concerns are essentially opinions, this seems to provide a way to get in through the back door what you can’t get in through the front door.  Since this is both a trial court and unreported decision, it is not precedential on any other trial judge, thus, the argument that the court should not consider the preparer of the CNA’s “impressions” or “concern” remains a viable one to make.

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and former editor of our Pennsylvania Family Law Blog wrote an interesting post entitled “Listening to Your Kids During Traumatic Times” .

In this post, Mark, from a child’s perspective, lists 15 things that parents going through this process should consider, as follows:

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”

  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.

  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.

  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.

  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.

  6. It really, really hurts when you don’t show up for something we have scheduled.

  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”

  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.

  9. I am not staying with you to provide information about what the other parent is doing.

  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.

  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.

  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.

  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.

  14. If there is bad news, please don’t ask me to be the courier.

  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

I recommend that everyone take a minute to read the entirety of this very thoughtful piece.

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin

It’s a tale as old as time. Divorced parents bash each other in hopes of garnering favor with their child during a divorce or custody dispute. At some point the child, becomes so exposed to the bashing, blame and ill-will from one parent toward another that the child becomes disenchanted with the other parent; the relationship begins to break down, sometimes, irreparably.

25487205 - unhappy family and child custody battle concept sketched on sticky note paper
25487205 – unhappy family and child custody battle concept sketched on sticky note paper

This strategy is known as parental alienation, and is being increasingly tossed around in Court battles – sometimes by a truly harmful parent who has exploited their child for a litigation win or as some sort of perverse retribution, and sometimes, it is levied against a parent legitimately attempting to protect their child from abuse or neglect.

However, in cases of true alienation, it is clear that it is injurious to all involved. University of Texas psychologist Richard Warshak, author of Divorce Poison: Protecting the Parent-Child Bond from a Vindictive Ex explains that it’s typically the emotionally healthier parent that is rejected, whereas the alienating parent thinks it acceptable to use the child as a form of punishment for the other parent. Warshak characterized it as a form of abuse toward both parent and child.

Still, as Eric Solotoff blogged in late 2012, the American Psychiatric Association board of trustees will still not go so far as to characterize Parental Alienation Syndrome as a mental illness in the DSM 5 (released in May 2013).

Yet, given the grave effects of parental alienation on both parent and child, it is no surprise that Courts are taking aggressive steps to try to restore the parent-child bond. Experts advise that alienation requires an order from a Court to allow a manipulated child time to bond with the alienated parent.

Sometimes, this will mean reunification therapy for the child and alienated parent, perhaps beginning once a week, and then gradually increasing. The therapist may ultimately place the child and parent in a “real-life” situation, like having the therapy occur in a diner, or at the park. Eventually, the parent may have parenting time alone with the child for an increasing amount of time as the relationship progresses.

For more extreme cases of alienation, where the child is completely past the point of even being open to conventional reunification therapy, the Court may order an intensive, immersion therapy program such as Stable Paths, which is described on its website as an “intensive therapeutic reunification intervention for families impacted by separation resulting from high-conflict divorce, parental alienation, and familial abduction.”

There, the families essentially move on to a tranquil campus, and immerse themselves in therapeutic activities together, such as horseback riding, cooking, sports and games. The goal is to create new memories and re-establish existing bonds and attachments in hopes of repairing the relationship. Each family leaves with a treatment plan for reunification.

The most extreme cases, however, may warrant a complete overhaul to the custody arrangement. Judges may award primary custody of the child to the alienated parent in an effort to extract the child from a toxic situation and reestablish the bond with the other parent.

In 2012, in Milne v. Goldenberg, the Appellate Division reaffirmed the necessity of trial court judges to consider removing a child from the custody of the uncooperative parent and/or imposing temporary or permanent modification of custody. The decision reinforced the holding of New Jersey courts that interference with an ex-spouse’s parenting rights is so inimical to the welfare of the child that judges should transfer custody when the non-compliance puts parent/child relationships at risk:

[T]he necessity for at least minimal parental cooperation in a joint custody arrangement presents a thorny problem of judicial enforcement in a case such as the present one, wherein despite the trial court’s determination that joint custody is in the best interests of the child, one parent (here, the mother) nevertheless contends that cooperation is impossible and refuses to abide by the decree…However, when the actions of such a parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

The Milne court reinforces that the Rules of Court provide for a change of custody as a remedy for recalcitrant parents. R. 5:3-7(a)(6) explains that remedies for violations of custody and parenting time Orders include “temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.”

Turning custody on its head, although seemingly an effective remedy, may prove difficult to swallow for some judges. Even if the Court finds alienation has occurred, it may prove almost impossible to override the child’s wishes, who, by the time the Court is involved, may be a preteen absolutely refusing to have any relationship with the alienated parent.

Accordingly to Psychology Today, House Divided: Hate Thy Father, by Mark Teich, it will take a “sophisticated judge to realize what psychologists might see as obvious: Deep down, the child has never really stopped loving the other parent. He or she has just been brainwashed like a prisoner of war or a cult victim, programmed to accept destructive beliefs until critical thinking can be restored.”

The same sophistication is required when a judge is asked to identify whether a parent accused of alienation is merely attempting to protect his or her child from actual abuse by the other parent. Parental alienation seems to have taken on “buzz word” status in recent years, being used even in cases where there may be a legitimate concern for the child’s safety and wellbeing.

As it stands right now, alienation can be repaired, but it requires judges to:

(1) Differentiate real alienation from legitimate concerns about abuse or neglect;
(2) Order parents to intensive therapy programs and ensure that resulting treatment plans are complied with; and
(3) Overlook the supposed desires of an alienated child to see that he or she has never stopped loving their parent, but has just been brainwashed to accept untrue and very destructive beliefs.
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Eliana Baer, Associate, Fox Rothschild LLPEliana 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.

In many custody disputes, a primary area of concern is one parent’s ability to relocate with the children after the divorce is over.  Relocation requests have been characterized as often resulting in “heart-wrenching” decisions.  As we have previously discussed on this blog, the legal standard to be applied to a parent’s interstate removal application differs if the parent is the primary caretaker as compared to an equal/”shared” physical and legal custodian with the other parent.  The two standards are briefly explained below:

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Equal/”Shared” custodial parents:  If the parents “truly share both physical and legal custody,” then the moving parent must prove that the best interests of the children would be better served by residential custody being primarily vested with the relocating parent.

One primary custodial parent:  On the other hand, if one parent is the primary caretaker, that parent’s request to relocate with the children is governed by the two-prong Baures test – specifically, the moving party has to prove by a preponderance of the evidence that (1) there is a good faith reason for the move; and (2) the move will not be inimical to the children’s interests.  The Baures test is analyzed in the context of twelve (12) factors set forth in that case, and is more favorable to the primary custodian seeking relocation.  In fact, it is this favorable standard that often sees non-custodial parents claiming “de facto” equal custodial status in response to a primary custodian’s relocation motion so as to convince the trial judge to utilize the best interests standard.  As an aside, there exists pending legislation that would alter this favorable legal standard.

What happens, then, if there exists a so-called non-relocation agreement and a primary custodian seeks to relocate interstate?  The Appellate Division was faced with that issue in the newly published (precedential) decision of Taormina Bisbing v. Bisbing.  Here are the facts that you need to know:

  • The parties were married in 2005 and the children were born in 2006.  Both parties were highly-paid professional employees, with wife earning more than husband.
  • In early 2013, husband investigated job opportunities in Colorado and California.  The parties separated in August, 2013 and, in November, wife began a long distance relationship with a Utah resident who had children from a prior marriage.  The Utah resident owned a business in Idaho and had business interests requiring him to frequently travel to California and Louisiana.
  • On March 8, 2014, the parties entered into a marital settlement agreement wherein they agreed to joint legal custody, and that wife would have primary residential custody under the condition that she would not relocate outside of New Jersey.  The MSA also provided that dad would have “broad, reasonable and liberal timesharing” of the children – Father’s Day, his birthday, every other weekend and on one weeknight during the weeks when he did not have parenting time, every other Thanksgiving, Christmas Eve, Christmas Day, New Year’s Eve, New Year’s Day, and school breaks.  Each parent was entitled to attend all sporting events and activities regardless of which parent was scheduled to have parenting time.
  • As to relocation, the agreement provided:

The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said   minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move, the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children outside of the United States without the prior written consent of the other party.

The parties hereby acknowledge that the Children’s quality of life and style of life are provided equally by Husband and Wife.

The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children’s contact with both parties and the quality of the relationship of the Children and each party.

The parties hereby acknowledge that any proposed move that relocates the Children any further away from either party may have a detrimental impact upon the frequency and duration of the contact between the Children and the non-moving party.

  • On April 16, 2014, a final judgment was entered that incorporated the terms of the settlement agreement.  Husband represented that, after the divorce, he was very involved in the children’s lives, coached their teams, took them to activities, and attended school events.
  • One month after the divorce, wife sent an email to husband telling him that, although she received no alimony, she was planning to leave her job on July 1, 2014 to be a full-time stay-at-home parent, which she did.
  • On January 8, 2015, wife called husband to tell him of her intention to get married to the Utah resident and relocate to Utah.  Wife asked for husband’s permission to relocate with the children.  Husband refused, indicating that she could move and leave the children with him.
  • On March 16, 2015, wife filed a motion to relocate with the children to Utah without the need for a plenary hearing.  The court granted the motion – without a hearing – so long as a visitation schedule could be established through mediation.
  • On July 14, 2015, after unsuccessful mediation, with only wife suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule using most of wife’s suggestions.  Eleven days later, wife and the children “left for a vacation to Utah.”  Three days thereafter, she permanently relocated with the children in Utah.

In reversing and remanding for a plenary hearing, the court found:

  1. The best interests of the child standard should be applied if wife was found to have negotiated the settlement agreement in bad faith.
  2. If no bad faith finding is made, the court is to consider whether wife proved a substantial unanticipated change in circumstances “warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis.”
  3. If the settlement agreement was deemed to have been negotiated in good faith, but wife fails to prove a substantial unanticipated change in circumstances, the court is to apply the above-referenced best interests of the child standard.
  4. In other words, wife could only receive the “benefit” of the Baures standard if wife was found to have negotiated in good faith and proved a substantial unanticipated change in circumstances.

Under such guidance, the Court distinguished from the notable prior trial court decision of Shea v. Shea,wherein the father accused the mother of of manipulating the Baures procedure by settling the divorce, and immediately thereafter filing for removal so as to reply upon the more favorable burden of proof.  Here, the Court critically found that husband was entitled to a hearing to prove whether wife manipulated the situation to obtain “favorable Baures removal procedures” that:

  1.  When wife entered into the agreement, she may not have definitely known of the “material facts and circumstances forming the good faith reason for the removal request” (i.e., moving to Utah to marry her boyfriend).
  2. The non-relocation provision did not exist in the earlier matter.

In so holding, the court found:

Similar to the situation in Shea, the close proximity between the parties’ agreement and [wife’s] plans to relocate provides evidence of suspicious circumstances requiring a plenary hearing.  If, after holding a hearing, the family court finds that [wife] negotiated in bad faith, it should then analyze the relocation request under a “best interests” analysis.

The non-relocation was to be considered even if wife is found to have negotiated in good faith, “without manipulative intent” premised on New Jersey’s strong public policy favoring agreements that resolve marital disputes.  In damning tone, the Court found:

Thus, [wife], in a written and voluntarily agreed-upon contract, specifically surrendered her “freedom to seek a better life” in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.

While the relocation language of the agreement considered new employment as a basis for moving, it did not mention remarriage, thereby leading the Court to suggest that testimony would reveal whether remarriage was a considered eventuality at the time of the agreement and, thus, not an unanticipated substantial change in circumstance.  The Court also noted that, if the Baures standard was to ultimately apply, the trial judge would be charged with analyzing the effect on the children of moving away from both parents’ extended families.

When I first read the facts, I was saddened, but not at all shocked at what seemed to be a clear manipulation of the prevailing legal standards discussed above.  I have been involved in many cases on both sides of the relocation argument, and have seen the devastation that can result.  A difficult situation becomes all the more tragic when it is clear that one party is not proceeding in good faith.  What wife seemingly did here is just as bad as the non-custodial parent who claims de facto equal custodial status just to have the best interests standard applied.  It is for these reasons, in part, why the pending legislation mentioned above makes sense in some form – to remove this sort of gamesmanship from the equation when children are involved and the relationships with one or both of their parents is potentially at stake.  The Appellate Division certainly got it right here with a just result.

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

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*Photo courtesy of Google free images.

Whether it is because of busy dockets or the fact that the issues could be hard to decide, especially without a plenary hearing, the use of parent coordinators (PC) began becoming more frequent about 10 years ago.  Sometimes it was by consent but other times, it was foisted upon warring parties whether they wanted it or not.  A new reality of “let the parenting coordinator referee the disputes” became a new reality for many.  In fact, in 2007, the Supreme Court implemented a pilot program for the use of parent coordinators in several counties which had both guidelines and a model order.  The goals were laudatory:

A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.

The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

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What was clear was the “The Parenting Coordinator may not make any modification to any order, judgment or decree, unless all parties agree and enter into a consent order” though this was often honored in the breach and PCs were vested with far more authority than the law allowed.

The issue that then came up was whether a Parent Coordinator appointed in a non-pilot program county had to follow the Supreme Court Guidelines.  We and others had cases where we objected to what we believed was the PC overstepping their roles and heard both PCs and court’s say that they were not bound to the pilot program guidelines.  The Appellate Division disagreed in Milne v. Goldenberg, a reported decision that we previously blogged on.

In 2012, the pilot program ended, however, the use of parent coordinators was not abolished.  Rather, court’s could still appoint PCs and parties could agree to use them.  Does that mean that a court could simply defer decision making to the PC?  Once again, the answer was a resounding no in the case of Parish v. Kluger, an unreported (non-precedential) decision of the Appellate Division decided on March 17, 2016, which was the latest chapter in the long standing litigation between these parties.  In fact, I was involved in the original reported decision in this matter dealing with similar issues, as we blogged on in 2010.  In that decision, the Appellate Division held that judge’s must decide enforcement motions, noting:

We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.

The Court also made clear that parent coordinators could not address enforcement issues nor could they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.

One would think that with this history in this case, that it couldn’t happen again, but it did.  In the 2016 decision, the Appellate Division wrote:

If, as plaintiff claimed, defendant was preventing him from exercising parenting time as per the MSA, then he was entitled to a remedy. If, as defendant claimed, plaintiff failed to exercise his parenting time out of disinterest, then the court’s decision to not alter parenting time was appropriate. The court should have resolved that dispute. When the court’s decision is considered in its entirety, it could be interpreted – as plaintiff has interpreted it – to vest in the parenting coordinator the resolution of the parties’ conflicting positions as to why the MSA parenting plan was not working. The court has no authority to delegate its decision making to a parenting coordinator. Further, a trial court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”

That last sentence is important, “…court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”  Too often, PC orders would expressly or impliedly give the PC the final say, with the trial court as a rubber stamp and/or requiring the losing party to file a motion so that the PC’s recommendation would not become a de facto Order.

The takeaway from this case is clear.  PC’s don’t make decisions.  Court’s make decisions.  Court’s cannot tell parties to follow a recommendation of a PC in advance, and moreover, even after it is issued, without fully assessing the issues and making independent fact findings.  Given that this is the case, in the real high conflict cases where one of the parties is inevitably going to oppose a PC recommendation and take the issue to court, what is the point of having a PC in the first place?

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_yeletkeshet’>yeletkeshet / 123RF Stock Photo</a>

In today’s ever-increasing mobile society, divorced or separate families find themselves relocating for a variety of reasons, including employment opportunities, new relationships, financial incentives and to be closer to family.

But what happens after families relocate out-of-state and child custody issues arise? Which state has jurisdiction to hear the matter?

Background

In 1968, the Uniform Child Custody Jurisdiction Act (UCCJA) was promulgated in order to prevent parental interstate kidnapping and forum shopping by the non-custodial parent (i.e. attempting to secure a more favorable forum to litigate child custody and parenting time issues in order to obtain a better result) by creating a uniform system for states to determining interstate custody and parenting time jurisdictional issues. By 1981, all 50 states had adopted their version of the UCCJA.

However, in December 1980, prior to all 50 states adopting the UCCJA, Congress enacted the Parental Kidnapping Prevention Act (PKPA). The PKPA was enacted to address interstate custody jurisdictional problems that continued after the enactment of the UCCJA, but ended up being largely inconsistent with the UCCJA and created almost 30 years of conflicting case law.

To address both the problems stemming from the UCCJA and the PKPA, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created in 1997. To date, the UCCJEA has been adopted by 49 states and the District of Columbia (except for Massachusetts) and various U.S. territories.

Two of the major revisions made to the UCCJEA were the prioritization of home state jurisdiction and the vesting of exclusive, continuing jurisdiction in the State that entered an original/initial child custody order.

Home State Jurisdiction

The first major revision to the UCCJEA was the establishment of Initial Child Custody Jurisdiction or “home state” jurisdiction. “Home state” is defined as, “the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” See Section 101 (7) of the UCCJEA.

Pursuant to Section 201 of the UCCJEA, in interstate child custody matters, a state is granted jurisdiction to make a child custody determination only if:

(1) The state was the “home state” of the child on the date of the commencement of the judicial proceedings, or was the home state of the child within the six (6) month period before the commencement of the judicial proceeding, and the although the child is not residing in the state, a parent or person acting as a parent continues to live in the state;

(2) A court of another state does not have jurisdiction, or the home state of the child has declined to exercise jurisdiction on the basis that this state is a more appropriate forum, and:

(a) The child and the child’s parents, or the child and at least one parent (or person acting as a parent) have a significant connection with the state, other than physical presence.

(b) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.

(3) All courts having jurisdiction have declined to exercise same on the basis that this state is the more appropriate forum.

(4) No Court of any other State would have jurisdiction under the criteria set forth in (1), (2), or (3).

Exclusive, Continuing Jurisdiction

The other major revision to the UCCJEA was the addition of “exclusive, continuing jurisdiction”. Pursuant to section 202, the continuing jurisdiction of the original decree state (i.e. the state that made an initial custody determination) is exclusive, and will continue until one of two events occur:

(1) If a parent or person acting as the child’s parent remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child’s care, protection, training and personal relationships in that State.

(2) When the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

This means that, even if the child has acquired a new “home state”, the original decree state retains exclusive, continuing jurisdiction, so long as the “significant connection” requirement of Section 201 (See 201(2)((a) and (b)) is met. However, if the original decree state determines that the relationship between the child and the person remaining in the original decree state has diminished, thus precluding a finding of significant connections and substantial evidence, jurisdiction in the original decree state would no longer exist.

Additionally, when the child, the parents, and all persons acting as parents physically leave the original decree state and live elsewhere, exclusive continuing jurisdiction ceases. In this event, either the original decree state or the new state may decide whether the original decree state has lost jurisdiction.

Jurisdiction to Modify Initial Determination

But what happens where an original decree state finds that it no longer has exclusive, continuing jurisdiction over a matter? How does it relinquish jurisdiction to a new “home state”?

Pursuant to Section 203, a new state may not modify a child custody determination made by the court of another state unless the new state has “home state jurisdiction” under Section 201 and

(1) the original decree state determines that it no longer has exclusive, continuing jurisdiction, or the original decree state determines that the new state would be a more convenient forum (See Section 207); or

(2) a court of the original decree state or a court of the new state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the original decree state.

Thus, a new state is prohibited from modifying a custody determination made by an original decree state unless the original decree state has determined that it no longer has exclusive, continuing jurisdiction or the new state has decided is it a more convenient. The new state is not authorized to determine whether the original decree state has lost its jurisdiction; only the original decree state can make that determination. The only exception to this is when the new state finds that the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

It is clear from section 203 that when an interstate child custody issues arises, the original decree state and the new state must communicate and cooperate to determine the proper jurisdiction of a matter; but how often does this occur?

 

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Application of the UCCJEA in New Jersey

While the new revisions and clarifications made to the UCCJEA were supposed to make it easier for courts to determine who could hear interstate child custody matters, as discussed in the recent unpublished (not precedential) decision of C.G. v. A.D. it is clear that the courts are still struggling over jurisdictional issues.

In the aforementioned case, the mother A.D., lived with the parties’ daughter in Delaware for 5 years, until the child temporarily moved to New Jersey to live with her father, C.G., due to A.G.’s medical condition.

Shortly thereafter the mother filed a petition in Delaware for custody of the parties’ daughter. In September 2012, the Delaware judge entered an order awarding the mother sole custody after determining that Delaware was the child’s “home state” pursuant to the UCCJEA, finding that since the mother filed the petition less than six months after the child left Delaware and went to New Jersey, Delaware retained jurisdiction.

The mother then filed a motion in New Jersey, requesting that the court to enforce the custody order entered by the Delaware court.

In June 2014, a New Jersey judge, after conducting oral argument, denied the mother’s application without making any findings of fact as to the child’s residency leading up to the mother’s petition for custody in Delaware and without communicating with the Delaware court regarding the original order. Additionally, despite failing to follow the procedural requisites of the UCCJEA, the New Jersey Judge entered an order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter.

Thereafter, the mother then returned to the Delaware court seeking again, an order of custody of the parties’ daughter. The Delaware court affirmed its original September 2012 custody order asserting, among other things, that Delaware had jurisdiction to enter the initial order due to the fact that Delaware was the “home state” of the child at the time the mother filed the application.

The mother then appealed the June 2014 New Jersey order, challenging the intervention of the New Jersey court in light of the original Delaware custody order entered in September 2012.

The Appellate Division made it clear that the dispute at bar was subject to UCCJEA and that an initial custody order was properly issued in Delaware. Thus, the subsequent order entered in New Jersey was a “modification proceeding” and in order to modify the initial order, New Jersey was required to make a two-tiered finding as to whether (1) New Jersey was the child’s “home state” and (2) if it was not, whether Delaware was.

If the New Jersey court concluded that New Jersey had “home state” jurisdiction, the next step would be to determine whether custody proceedings had been commenced in another state. If so, New Jersey must stay its proceedings and communicate with the other court to seek an agreement as to whether New Jersey is a more convenient forum or Delaware retained jurisdiction.

If New Jersey concluded that Delaware remained as the child’s “home state”, then all proceedings should have been deferred to Delaware.

Unfortunately, in this matter, the New Jersey court did not follow the proper procedure under the UCCJEA, despite being presented with an existing custody order from Delaware, and the subsequently entered June 2014 order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter was reversed and remanded.

Parting Words

When it comes to the interstate child, the first order of business before filing a custody or parenting time application, it to determine the proper jurisdiction for doing so. In a matter where two (or sometimes more) courts must communicate, it may be prudent to file an application in all possible jurisdictions, requesting that the possible courts communicate with one another to determine the appropriate forum. This step will (presumably) avoid the inconsistencies that arise when multiple orders are rendered by multiple jurisdictions. Taking this simple step before filing an application may also avoid extensive litigation to correct jurisdictional errors, which could elongate matters and drive up fees unnecessarily.