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

FD Docket versus FM Docket

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

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

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

The Facts of J.H. v. J.G.

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

Requirements for ALL Custody Disputes

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

Pre-Hearing Requirements

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

Required Plenary Hearing

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

Requisite Fact-Findings and Reasons for Award

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

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

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

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


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

In the domestic violence statute, there is a presumption that the abused should get custody.  In the custody statute, the prior history of domestic violence is simply one of the many factors that a court must consider.  There really has not been a reported case that addresses the confluence of these two statutes until July 28, 2014, when the Appellate Division decided R.K. v. F.K.

In that case, the mother obtained a Final Restraining Order (FRO) against the father in 2008 and was awarded custody subject to the father’s parenting time.  In 2010, a plenary hearing was held in the domestic violence action on the father’s application to change custody, which was ultimately denied.

In 2011, the father filed a complaint for divorce and hired a custody expert who opined: (1) “that Mother had “very significant psychological problems,” which jeopardized her “emotional stability as a parent,” were “likely to interfere with appropriate parental communication with” Father, were “likely to interfere with her parenting,” and could have “a very negative effect on her children.””; 2) “that “[t]he current situation does not appear to be in the best interests of the children as a long-term plan.””;  3) that it was “inadvisable for Mother to continue home-schooling the children and 4) also recommended that Father and Mother split residential parenting responsibilities evenly.

After a seven-day trial, the court denied relief because it found no substantial change of circumstance, and because it relied on the presumption of custody in N.J.S.A. 2C:25-29(b)(11) of the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -33.

The Appellate Division vacated the decision, finding that the trial court “misapprehended the roles of both the change of circumstances requirement and the presumption.”

The Appellate Division noted that while the trial court applied a changed circumstances analyis, “…at a trial to determine custody, “the ultimate judgment is squarely dependent on what is in the child’s best interests.” Baures v. Lewis, 167 N.J. 91, 115 (2001).”  The Appellate Division noted that the two step process relative to change of circumstances (i.e. the threshhold showing of a changed circumstances to be entitled to discovery and a plenary hearing) does apply to custody cases.  That said, one a movant makes that preliminary showing, “…  the second-step hearing or trial is decided using “the same standard that applies at the time of [an] original judgment of divorce.””

The Appellate Division noted that based upon the expert’s report which established a change of circumstances, an evidentiary hearing was warranted; i.e. the trial court correctly went to step two of the process making the finding of a lack of showing of a change circumstance a contradictory finding.  Put succinctly, the Appellate Division held:

Thus, the court was required to determine custody at that trial based solely on the best interests of the children. However, in its decision the court mistakenly relied on the lack of a “substantial change in circumstances.” The change of circumstances standard serves to determine whether a trial should be held, not to determine the result of that trial. (Emphasis added)

The Appellate Division went on to hold that, “The trial court also erred by relying in this matrimonial proceeding on the presumption used in domestic violence cases.”  The court noted that it is proper and within the statute to award temporary custody at an FRO hearing.  The court noted the rationale for this:

This presumption plays an important role in the initial DV proceedings, which must be conducted expeditiously, and in which custody is only one of many issues. See N.J.S.A. 2C:25-29(b). Further, this presumption reflects the DV Act’s finding “that there exists ‘a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.'”

In this case, the DV court awarded Mother temporary custody of the and the trial court assumed that the presumption still governed.  It did not because a different statutory scheme applies to custody determinations in divorce trials which are governed by N.J.S.A. 9:2-4, which addresses domestic violence as one of several factors requiring consideration.  The court further noted:

Allowing our family courts to weigh the seriousness of the history of domestic violence against the other N.J.S.A. 9:2-4 factors, rather than binding them with a mechanical presumption, better enables them to consider the best interests of the child in determining the vital issue of child custody in divorce, using their “special expertise in the field of domestic relations.” Cesare, supra, 154 N.J. at 412. In so doing, the court must consider “the safety of the child and the safety of either parent from physical abuse by the other parent.” N.J.S.A. 9:2-4.

The take away here is that if the court thought that there was no change of circumstances, then it shouldn’t have had a trial (though this too may have been reversed based upon the expert’s report – but I think it would be harder to show an abuse of discretion than an error in the law – which is what this reversal was based upon.)  Once it did, it had to apply the custody statute.  Since more than two years went by, the parties were allowed to  supplement the record to bring the court up to date.  That said, the father lost more than two years here that he can never get back – further showing the inefficiency of the system.

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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.

Yesterday, my post on this blog was called "Alimony – Back to Basics."  Just like with alimony, over the years, we have had dozens of posts on this blog about custody and parenting issues.  However, just like with alimony, there are statutory factors that the court, as well as the custody experts, must consider when making decisions (for judges) or recommendations (for experts) related to custody and parenting time.

The following is a refresher on the custody factors set forth in N.J.S.A. 9:2-4 that must be considered:

1. the parents’ ability to agree, communicate and cooperate in matters relating to the child;

2. the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

3. the interaction and relationship of the child with its parents and siblings;

4. the history of domestic violence, if any;

5. the safety of the child and the safety of either parent from physical abuse by the other parent;

6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

7. the needs of the child;

8. the stability of the home environment offered;

9. the quality and continuity of the child’s education;

10. the fitness of the parents;

11. the geographical proximity of the parents’ homes;

12. the extent and quality of the time spent with the child prior to or subsequent to the separation;

13. the parents’ employment responsibilities;

14. and the age and number of the children.

These factors are not all inclusive but represent the minimum of what must be considered.  After you decide that you wish to seek custody (or perhaps before you decide to jump into that battle) you should go down each of these factors and review, as objectively as possible, how they would apply to your case.

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Eric 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 practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.