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

Americans are almost obsessed with the ideal that government should be entirely separated from any religion. Indeed, the term “separation of church and state”—a quote from Thomas Jefferson—is the most common label for the freedom of religion guaranteed by the First Amendment of the Constitution.

But how does this bedrock principle play out when a living, breathing child is at stake? Can a parent mandate that the child practice one religion over another? Can a court? Can an agreement specify that the child will enroll in certain religious educational courses, or even attend a certain religious school?



In a recent reported (precedential) decision, Rothstein v. Warschawski, the Appellate Division concluded that the decision to enroll a child in religious school must be analyzed under the “best interests of the child” standard, which is the same analysis the Court undertakes in determining issues of custody and parenting time.

In Rothstein, the parties had joint legal custody of their minor child, Yael, and the mother, Rothstein, had primary physical custody.  Their divorce agreement noted that the parties had not reached any meeting of the minds as to whether they would enroll Yael in religious education, but stated that if they did, the parties would agree to split the cost 50/50.  It further stated that the parties would have equal say in any decisions as to Yael’s education.

In the years following the divorce, Rothstein enrolled Yael in an Orthodox Hebrew Day School.  The father, Warschawski, objected, stating that, although the school Rothstein selected was accredited by an organization of Hebrew Day Schools, it was not accredited by a secular education body, and therefore the child should not attend.

In March 2012, the Court agreed with Warschawski, and compelled the mother to enroll Yael in a “mutually agreed upon” school for the upcoming 2012-2013 school year that was accredited by the Middle States Association of Colleges and Schools (MSACS).  The Court did so without a statement of reasons, an explicit definition of “accredited” or any explanation as to why accreditation was important.

Nonetheless, the mother did not appeal the Court’s order.  The parties thereafter did not agree on an accredited school and Yael remained in the school that Rothstein had initially selected.

Thereafter, Warschawski filed a motion to enforce the Court’s order.  In response, Rothstein asserted Yael was thriving in her current school, that the school provided her with an appropriate religious curriculum and performed well on testing as to its secular curriculum.

Following a series of subsequent applications, the Court ultimately decided that Yael should be enrolled in an accredited school for the 2013-2014 school year.  In its statement of reasons, the court noted, “The issue of accreditation has been addressed multiple times.” The court recognized “perhaps prior Orders have not stated a ruling with sufficient clarity . . . .” The court concluded, “[Yael]’s current school . . . is not an adequately accredited educational institution and Plaintiff is Ordered to remove [Yael] and enroll her in a different, accredited school, agreeable to both parties.”

The mother appealed.

In accordance with the laws on joint legal custody in our State, the Appellate Division rejected the mother’s argument that as the primary residential custodian, she was empowered to determine unilaterally Yael’s religious upbringing, and, by extension, her private religious education.  Moreover, the parties’ agreement specified that they would confer regarding Yael’s religious education and upbringing.

However, the Appellate Division then parsed through the Family Court’s role in resolving dispute between parents involving religion:

The courts cannot choose between religions; they cannot prevent exposure to competing and pulling religious ideas and rituals. But the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the child’s religious upbringing before their marital relationship foundered, subject to the predominant objective of serving the child’s welfare comprehensively.

Against that backdrop, the Appellate Division stated that a dispute between parents involving school selection must analyze the best interests of the child – a fact sensitive, and fact intensive analysis.

The Appellate Division found that the trial court failed to apply the above principles in its determination that Yael should only attend a school accredited by MSACS without any rational that this was essential. Nor did the record support the conclusion that Yael’s secular educational needs can only be met by attending a MSACS-accredited school.

As a result, the Court remanded the matter for an assessment of Yael’s best interests, which involves a close examination of her “peer relationships, the continuity of friends” as well as her “emotional attachment to school and community that will hopefully stimulate intelligence and growth to expand opportunity.”

Family courts tend to shy away from determinations involving religion or religious education, sometimes even citing the First Amendment as justification (although that did not occur here). However, it is impossible to conceive of a situation where a family court judge can legitimately and appropriately throw up its hands and stating that matters of religion are not examined when the well-being of a child is at stake.

See Robert Epstein’s prior blog related to this topic, entitled A Child’s Religious Upbringing – Choose But Choose Wisely, from June 2013.


Eliana T. Baer is a frequent 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

Let’s be honest – articles about Tom Cruise’s lifestyle are never dull, especially those pertaining to his religious beliefs.  His divorce last year from Katie Holmes was, and continues to be, consistent tabloid fodder, especially with his ongoing defamation lawsuit against one such magazine for claiming that he “abandoned” their daughter, Suri.  While some of us may wonder at what point Tom became more known for his off-screen behavior than for his movies (for my money I’m taking the Oprah couch-jumping incident of 2005), the impact of religion in the now-settled divorce matter is somewhat coming to light.tom

News reports are spilling the details of  his deposition testimony stemming from the defamation lawsuit.  Apparently Tom acknowledged under oath that one of the assertions made by Katie in filing for divorce was to “protect” Suri from Scientology.  While I cannot say what their settlement agreement says about Suri and her religious upbringing, I can talk about the law in New Jersey on this issue.  We have blogged on this issue in the past, but “Maverick” inspired me to write about it again.  In New Jersey, the law generally provides that religious education/upbringing is a matter of joint legal custody (major decisions).  However, the so-called “Parent of Primary Residence” (most commonly defined as the parent with more than 50% of the overnights) has the final say in the event of a dispute.  By contrast, the “Parent of Alternate Residence” is allowed to expose (not educate) the child to another religion.

Assuming that the parties do not agree in their settlement agreement as to the child’s religious upbringing, the PPR could have final say in the event of a dispute  Thus, she could determine that the child should no longer be raised in the PAR’s religion.  By contrast, the PAR could expose a child to his religion in what is ultimately a non-educational manner.  I once represented a client who raised her son Catholic, but dad was bringing him to “classes” at his mosque.  When mom objected, the court determined that the “classes” involved an educational component, rather than just game playing for the kids while the adults attended services.  As a result, dad was prohibited from taking the son to such classes.

What is the takeaway here?  As seen by Eliana Baer’s most recent posts, religion can play a major part in a divorce matter.  It can be especially sensitive when it involves the children.  Each case will ultimately rest on its own facts to determine whether the decisions are being made in the best interests of the child.



Oftentimes during a divorce proceeding, the issues of custody and parenting time are resolved early on in the case.  There is nothing stopping parties from drafting a final agreement detailing the legal and residential custody arrangement with a detailed parenting schedule, and having the court enter the agreement while financial issues such as alimony, child support, equitable distribution, and counsel fees remain in dispute.

In fact, settling such issues earlier in the matter not only generally benefits the parties and the children by ideally reducing conflict and allowing the kids to get used to a new parenting schedule, but also it limits the remaining issues on the table.  In conjunction, it prevents the need to procure a custodial expert (or more than one) at a substantial cost and lengthy evaluation process involving the kids, and may also limit counsel fees.  Should your matter proceed to trial, the number of days will also be fewer than if custody was still in dispute.  To that end, while 98% of cases settle, I find that most custody and parenting time disputes settle separate and apart from financial issues, well before trial.

divorce and kids

It is generally deemed improper to intertwine the issues of custody and finances during the settlement negotiation process.  In other words, and by way of example, a custodial parent should not be dangling more parenting time in front of the other parent in exchange for a larger amount of alimony, or proposing a shared custody arrangement that will automatically shift to sole custody for one parent if that parent cannot afford to live near the other parent (without a full analysis of what is in the best interests of the children).  This type of negotiating is generally deemed in bad faith because it can be contrary to the best interests of the children, and contrary to public policy.  Custody agreements are supposed to be premised on what is in the best interests of the children, and not predicated on how much one party receives in assets.  It is because these issues are supposed to stand so independently from one another why they can and should be resolved independently.

A trial judge, however, is not permitted to know the substance of negotiations and, thus, cannot know when one party is improperly negotiating in such fashion.  In some instances, the court will ask the parties to submit their respective settlement positions in sealed envelopes, to be opened only once trial concludes, but for the purpose of determining each party’s reasonableness in connection with the issue of counsel/expert fees.  It does not, however, stop a litigant from proposing something that entirely intertwines the issues of finances and custody.

Custody and parenting time is too delicate to negotiate this way.  Many litigants, however, aware that it is improper to connect the issues, do exactly that without expressly saying so.  For instance, the litigant will not agree to any issue in isolation, and will only agree to resolve everything together in a so-called “global” settlement entirely ends the case.  In other words, the litigant refuses to resolve custody independently of finances, but in a way that does not expressly suggest that the issues are being intertwined.  This sort of conduct usually becomes clear when I ask an adversary when I wil be receiving a response to my client’s custody proposal, to which I am asked, “when is your client going to make a financial proposal?”

To that end, an adversary once told me that he does not believe in negotiating custody issues, and that it should essentially be what it should be.  While I do not agree with that sentiment, especially since each case is different, that adversary’s tune changed once his client gained leverage over the issue in a particular case (where his client, as a result, reneged on several of her own prior proposals in a clear sign that she had no intention on resolving custody and parenting time in isolation from finances).  When I noted that the litigant was improperly combining financial and custodial issues in her latest proposal, the attorney responded that he was not going to stop his client from doing so in that particular case.  As a result, the matter proceeded to trial on all issues over the course of several months at a staggering cost, and even involved the children having to be interviewed by the trial judge – all because one party insisted on improperly intertwining financial and custodial issues.

So, what is the take away here?  Issues of custody and parenting time are too sensitive to tie a resolution of those issues to finances, and doing so is not only a disservice to the children (where they may even forced to meet with the judge), but also can heighten acrimony between the parties, increase counsel fees, and ensure a trial where one could have been avoided.


I suspect that anyone that read my last blog might think that I am against shared custody or that I believe it to be impossible.  That is not the case.  Rather, my point in that post was to address possibly bad faith requests for joint custody by those people who have historically neither spent a lot of time with the children nor did much of the actual parenting.

But shared parenting time is not an impossibility.  Supposedly, it requires parents who have the ability to communicate and cooperate.  That said, I have seen parents who cannot have a civil word with each other effectively co-parent. 

Shared parenting, by New Jersey standards, is anything between 28% (104 overnights) and 50% of the overnights with the children.  Curiously, these definitions actually stem from the child support guidelines.  When the newest iteration of the Guidelines came into being in 1997 or 1998, they had two different worksheets – a sole parenting worksheet and a shared parenting worksheet (104 overnights and over).  While non-custodial parents now got child support reductions with each overnight, the credit was greater using a shared parenting worksheet. As a result of the new guidelines, negotiations over additional overnights began, in many cases for obvious reasons.

Continue Reading Shared Custody – It is a Possibility

The online edition of today’s New York Post reported that Tiger Woods and his wife Elin have resolved the issue of custody.

The details were not really set forth in the story nor are they really important.  Assuming all that has been reported on is true (and quite frankly if even if only some of it were true), if there is ever a spouse that had a right to be really mad it is Elin Nordegren.  Yet even these people were seemingly able to put aside the anger, lack of trust, resentment, etc. that is likely to exist to do what is best for their children.  From all accounts, it does not appear that the children were used as pawns. 

So if this story is try, these people should be commended and serve as an example to others (at least as to this issue and maybe golf) on how to put aside the emotional issues surrounding a breakup and potential divorce and put the children first. 

A long standing problem for matrimonial attorneys has been the calculation of child support in situations in which two parents have equal physical custody of children. The Court Rules tell us that when the combined net income of the two parents is $187,200 or below, the Guidelines must be utilized as a rebuttable presumption for child support. Practice tells us that the Guidelines are rarely deviated from in this income category.

 The Child Support Guidelines are predicated on the supposition that there are three types of expenditures that parents make for or on behalf of their children.. The first is fixed expenses (representing 38% of the child support amount) are those expenses incurred even when the child is not residing with the parent. Examples of this include housing-related expenses, such as mortgage or rent, utilities, household furnishings and household care items. The second is variable expenses (representing 37% of the child support amount). Variable expenses are incurred only when the child is with the parent. This category includes items such as transportation and food. Finally, controlled expenses (representing 25% of the child support amount) are those expenses which include items like clothing, personal care, entertainment and other miscellaneous items.

The Guidelines presume that each parent has fixed and variable expenses on behalf of the child. On the other hand, the Guidelines also presume that controlled expenses are ONLY incurred by the parent who is designated the “Parent of Primary Residence.”  However, in a true joint custody scenario, neither parent is the Parent Primary Residence and both have controlled expenses. The calculation of child support in these cases has been problematic for many years and there has been little consistency as to the child support awards in these cases. On April 13, 2009, a published trial court decision was handed down in which there is a specific formula to determine child support.

Continue Reading FINALLY! A child support formula for joint physical custody cases!

A lot of times clients come in saying that they want full or sole custody of the children.  This inevitably leads to a discussion regarding the distinctions between legal and residential custody.

Legal custody is essentially involves decisions regarding children’s health, education, religion and general welfare.  With sole legal custody, one parent can make all of the decisions regarding these matters, though they have to consult the other parent in most cases.  With joint legal custody, the parents must consult and attempt to agree. 

Residential custody is where the child lives.  Some catch phrases often used are Parent of Primary Residence (or PPR) and Parent of Alternate Residence (or PAR).  Surprisingly enough, the official definitions for these terms come from the Child Support Guidelines.  Simply put, the PPR is the parent with whom the children reside more than 50% of the time. 

Now, with regard to the question as to whether it is worth fighting about the issue of sole vs. joint legal custody.  In practice, I have found that even in all but the worst of situations, must custody experts recommend and most judges order joint legal custody.  This is even though there is case law that says that joint legal custody may not be appropriate if the parties evidence no ability to communicate.  Of course, if it is the custodial parent that wont cooperate, it seems unfair to reward that parent with sole custody. 

In addition, there is a presumption in the case law that the custodial parent gets the final say in the event of a deadlock between the parents, even when there is joint legal custody.  This has come up time and again in reported decisions, including in cases regarding religious upbringing and of all things, a nose job. 

So, if the experts and courts are usually going to recommend joint legal custody, a litigant must investigate whether it is really worth it to fight for sole custody  Similarly, if the PPR has the legal presumption anyway, one must really consider whether it is worth the fight. 

This is not to say that it is not worth fighting about custody.  The real fight in most cases, if there is a bona fide dispute,  is and should be who is the PPR and how much parenting time the other parent enjoys.