Custody and Parenting Time

In a new, published (precedential) decision, J.G. v. J.H.Judge Koblitz, of the Appellate Division confirmed and explicitly held what we all should have known before:  No matter what type of case, the same rules apply with respect to discovery and investigation, and the trial court judge is under the same obligation to apply the legal standard resulting in a decision that is in the best interests of the child.

FD Docket versus FM Docket

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

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

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

The Facts of J.H. v. J.G.

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

Requirements for ALL Custody Disputes

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

Pre-Hearing Requirements

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

Required Plenary Hearing

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

Requisite Fact-Findings and Reasons for Award

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

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

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

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


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

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.

_________________________________________________________________________________________________________________________________________

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.

Clients with children often ask what can a court do if the other parent violates an existing custody or parenting time order.  The level of emotion and concern raised by such violations can be overwhelming and, oftentimes, victimized parents do not know what to do or where to turn.  Just a few of the issues and questions may be:

  • When the other parent deprives me of seeing my child despite the terms of the parenting time schedule that we agreed to, can he or she be forced to pay a fine?
  • If the other parent does not allow me to speak with my child on a “reasonable and liberal” basis as set forth in our agreement, can I file a motion with the court and have the person thrown in jail?
  • What about when the other parent does not tell the school or the doctor that I am supposed to have access to all of our child’s records too, and am supposed to be notified of events, meetings, appointments, and the like?
  • How about when the other parent decides to take our child to religious school, even though our agreement specifically says there will be no religious school?
  • Can I force the other parent to pay my attorney fees for having to address these issues?  What is the other parent going to say?  Are the answers ever “black and white”?

tug of war

While each situation poses its own unique set of facts and circumstances, where, as a result, the situation is almost never black and white or straightforward, there are options available when asking a court to address the situation.  I address two of the more widely utilized options below.

1.     Rule 1:10-3

Rule 1:10-3 of the New Jersey Rules of Court is the most commonly relied upon rule when one parent seeks the enforcement of a custody or parenting time order or agreement against the other parent.  The application is generally referred to as a “motion in aid of litigant’s rights” or a “motion to enforce litigant’s rights” and it is designed to remedy the specific violation of the order or agreement at issue.

Importantly, any sanctions imposed pursuant to Rule 1:10-3 are supposed to be “coercive, not punitive” in nature.  Thus, the mode of enforcement may even be of a monetary nature – perhaps a fine – or incarceration.  The fine may be of any amount deemed appropriate by the family court judge to coerce the violating party to comply with the order or agreement moving forward.  The offending party may also be required to pay for the moving party’s counsel fees.

2.     Rule 5:3-7

Rule 5:3-7 provides for potential “Additional Remedies” in the event of a custody and parenting time order/agreement violation.  Specifically, subpart (a) provides a court with no less than  ten (10) available options – which may be imposed in combination – in addition to those available under Rule 1:10-3:

  • Compensatory time with the children.
  • Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent.
  • Modification of transportation arrangements.
  • Pick-up and return of the children in a public place.
  • Counseling for the children or parents or any of them at the expense of the parent in violation of the order.
  • Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.
  • Participation by the parent in violation of the order in an approved community service program.
  • Incarceration, with or without work release.
  • Issuance of a warrant to be executed upon the further violation of the judgment or order.
  • Any other appropriate equitable remedy.

Many factors will be at play when a court determines whether to implement any of the above-remedies, not the least of which is the opposition posed by the allegedly violating parent.  For instance, one of the most commonly seen defenses to an allegation that a parent is not seeing a child for parenting time is that the child does not want to go.  Well, then the question is, if that is even true – since shielding the child from the proceeding is ideal, especially for younger children – why doesn’t the child want to go?  Then the issue spiders out into a variety of other potential arguments, such as the child’s age, disparagement of the moving parent to the child by the violating parent, alienation, scheduled activities and more.

Ultimately, victimized parents need not sit idly by and watch as the other parent does whatever he or she wants with respect to custody and parenting time despite an existing order or agreement.  There are many options, and many available remedies, to help ensure that the violations stop before it is too late.

 

*Photo courtesy of meepoohfoto.