modification of custody

In this economy, you would be surprised to see how many judges are jaded by applications brought by supporting spouses to reduce their support obligations based upon a reduction in income. After all, some judges entertain these applications on their daily docket and oftentimes see supporting spouses who are simply attempting to capitalize on the down economy and lack any actual merit to their cases. This blog post will explore one of the reactions by judges to this type of application; namely, denying the request of the supporting spouse outright without even holding a hearing, taking testimony, and making credibility findings.

Support obligations are always modifiable by the family court upon application of the supporting spouse.  Typically, this type of application requires the supporting spouse to make a threshold prima facie showing that “changed circumstances have substantially impaired the ability to support himself or herself.” Lepis v. Lepis, 83 N.J. 139, 157 (1980). When such a showing is made, the Court must next determine if a plenary hearing is warranted. This is sometimes referred to as the two-step Lepis analysis.


Continue Reading Motions to Reduce Support: When Applications are Denied without a Plenary Hearing, What's Next?

In these uncertain times, it seems as though everyone is talking about the impact of the economy.  We’ve posted many blogs about proving changed circumstances for an increase or decrease in child support and/or alimony as well as a modification of parenting time.  You can read a few of those blogs here, here or here.

The trend continues.  In the recent unpublished Appellate Division decision of Rosenthal v. Whyte, A-1776-10T4, decided December 5, 2011, stemming from two Orders from the Cape May County trial court, the Court affirmed the lower court’s Orders denying Ms. Whyte’s motions to modify custody and child support.  To put it simply, Ms. Whyte failed to meet her burden that enough of a change had occurred to warrant a modification of the parties’ 2008 Property Settlement Agreement (“PSA”).

The parties’ 2008 PSA provided for an anticipated move by Ms. Whyte with the minor child to upstate NY, more than 500 miles from Mr. Rosenthal’s Cape May county residence.  It also provided that Ms. Whyte was leaving her job as a school teacher to pursue a business opportunity in NY state.  Child support was set with these facts in mind.  Mr. Rosenthal’s parenting time was set forth as one weekend each month and one continuous month every summer with an additional week over the summer.


Continue Reading Custody, Child Support & Changed Circumstances

Oftentimes, issues of custody and parenting time are the most difficult and sensitive decisions that a judge in the family part must make. It involves deliberation of the ever-elusive “best interests of the child” – a question with no right or wrong answers. While the standard is ostensibly subjective, there are certain guideposts that a judge must look to in order make the difficult determinations that come along with issues of custody. Those factors, as set forth in N.J.S.A. 9:2-4(c), include: 

  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 visitation that is not based upon substantiated abuse;
  3. The interactions and relationship of the child with its parents and siblings;
  4. Any history of domestic violence;
  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 if the child is of sufficient age and capacity to reason so as to make 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 child prior to or subsequent to the separation;
  13. The parents’ employment responsibilities;
  14. The age and number of children.

As can be seen in the recent case of Vidal v. Gelak (an unreported/non-precedential decision), when judges do not examine these all-important factors, their decisions face reversal and remand on appeal. 


Continue Reading In Change of Custody Cases, Best Interest Standard is King

As a matrimonial lawyer, I often get the question "how old does a child have to be to decide who they get to live with?"  There is a perception out there that there is a magic age where a child is empowered to decide which parent they get to live with.  This simply is not the case. 

Rather, a child’s preference is only one factor a court must consider when deciding custody.  Why is the child’s preference not absolutely determinative?  Because it is not always reliable and may not be in their best interests.  Maybe the child is too young or too immature for their preference to be relied upon alone.  Maybe one parent is improperly influencing or pressuring a child to express a preference that is not their true preference.  Maybe the child feels bad for and/or feels the need to take care of the parent because of some physical or mental infirmity of the parent or a feeling that the parent is the victim of the other parent.  Perhaps the child has been promised something by the other parent or is trying to play one parent against the other.  Perhaps the child (maybe a teen) feels that the other parent will give them more freedom. 

This issue becomes even more difficult after an initial custody determination is made or agreed to and then a child expresses a preference to live with the other parent.  That was the issue in the unreported (non-precedential) decision in the case of Traynor n/k/a Dallara v. Traynor decided on March 29, 2011.  In this case, the father appealed the denial of his motion to change the custody of his 11 year old daughter who allegedly decided that she wanted to live with him.


Continue Reading Just Because a Child Says They Want to Live with the Other Parent Does Not Mean that Custody Should be Changed

Being a divorced parent and attempting to relocate to another state can be a difficult proposition.  N.J.S.A. 9:2-2 provides that children cannot be removed from the state without the consent of both parents unless the court otherwise orders. The statute’s intent is to preserve the rights of the noncustodial parent and to ensure that children are able to maintain their familial relationship.  Although the statute is stated simply enough, the process of relocating without the consent of the noncustodial parent can be extremely trying as evidenced in a recent published New Jersey Supreme Court decision, Morgan v. Morgan (n/k/a Leary).

In Morgan, the Court reviewed a decision denying a divorced mother’s request to move with her children to another state after the children’s father objected to the relocation.  These parties were married for 13 years and had two children when they divorced in 2005.   The final judgment of divorce incorporated the couple’s Property Settlement Agreement (PSA), which provided for joint legal custody of the children and which indicated that mom would be the party of primary residence. Under the PSA, dad would have the children alternate weekends, every Tuesday evening, every Thursday night until Friday morning, and for two weeks of vacation.

In late 2005, in anticipation of an application by mom to move with the children to Massachusetts, dad filed a motion seeking a re-determination of custody based on “a substantial change in circumstances.” He contended that he should be designated the parent of primary residence because he saw the children more than the PSA provided and was very involved in their school and recreational activities. Mom opposed this motion and filed a cross-motion seeking permission to move with their children to Massachusetts or, alternatively, a plenary hearing. In support of her request to relocate, mom pointed to the fact that Massachusetts is her home state; her entire family resides there; she was by then engaged to a Massachusetts resident; that her marriage would enable her to forego employment and become a “stay-at-home” mother; and that the PSA was not based on her promise to remain in New Jersey.  As a result of these filings, a plenary hearing was held with both sides presenting fact and expert witnesses.


Continue Reading Divorced? Have Children? Trying to Move to Another State?

This post was written by Jessica Goldberg, a new associate in the Family Law Practice Group in the Roseland office and also, a new contributor to this blog.

The recent Appellate Division’s decision in Dunn v. Willis, although unpublished and therefore not precedential, brings up some interesting issues regarding custody disputes. First, it is important to note that when a judge is asked to consider a change in custody, that judge must first find that there has been a change in circumstances warranting further proceedings. In Dunn v. Willis the Judge concluded that the mother, who was seeking custody of her son, had failed to show the necessary changed circumstances. The Appellate Division agreed with the Family Court Judge and within its’ decision a warning can be construed about the dangers of too often involving the Court in family matters.

The history of this case is as follows: Mom, unmarried, had an alcohol abuse problem and although she had stopped drinking by November 2002, she was participating in an inpatient rehabilitation program and the Division of Youth and Family Services was involved with the family. In January 2003 the Court entered a consent order, signed by mom, the child’s maternal grandparents, and the child’s paternal grandparents. This consent order gave custody to the maternal grandparents and visitation rights to the paternal grandparents with the condition that the child’s father not be present during their visitation time. In August of 2003 mom was awarded parenting time with her child. In 2004 mom’s stability begins to become apparent – she is out of rehab, she has a full-time job and she has bought a home near the child’s school. In October 2004 mom makes a motion for a change in custody, but the Court denies this motion. In May 2007 mom gets a bachelors degree in nursing. In December 2007 the Court enters an order increasing mom’s parenting time, however, the Court again denies mom custody. Finally, in April of 2008 mom is awarded joint legal custody with her parents, the child’s maternal grandparents. Another order is entered in June 2008 restricting mom from making unilateral decisions without approval from her parents with whom she shares custody.

Then, in June 2009, mom files a motion, now the subject of this Appellate decision, to obtain custody of her son. By this time mom is working full-time as a nurse and is about to receive her Masters Degree in nursing. Her relationship with the child’s father has improved to the point where they are communicating and the child is building a relationship with his father and the father’s younger son. During this entire time the child has lived with his maternal grandparents and an older half-sister, however, the half-sister is now going off to college and mom asserts that the child, now eleven years old, wants to live with her. The Court, however, denies mom’s request to interview the child or appoint an expert to evaluate whether a change would be in the child’s best interest. The Court denies mom’s motion on the grounds that mom has failed to show the necessary changed circumstances.


Continue Reading When Change of Circumstances is Not Really a Change Necessary to Modify Custody

When to seek change of residential custody can be a difficult and costly decision to make. Obviously, when the safety and well-being of a child is in question, efforts must be made by the non-residential parent to seek custody (even if temporary) of the child. In a recent unpublished decision, Gorski v. Young, Appellate Division, Docket No.: A-2707-08T3m, decided January 8, 2010, the Appellate Division affirmed the decision of the trial court, when it decided if a ten-year old boy was in danger with his mother who had residential custody. In this case, Gregory Young filed a motion for a change of residential custody of the parties’ ten-year old son, Brian (fictitious name). Gregory alleged that Brian’s mother, Angel Gorski, was too mentally unstable, which resulted in Brian receiving “tardies” from school and culminated in an alleged suicide attempt by Angel – a fact Angel denied. Gregory’s motion was denied without a plenary hearing.

Continue Reading Change of Residential Custody – What Does It Take?

There are times when litigants, without first seeking the advice of an attorney or at times, disregarding the advice of counsel, will file, on their own, motions to the court seeking to change or modify certain aspects of a previously entered agreement reached in resolution of a divorce proceeding or order entered by a court.  For example, an application seeking to change the custodial arrangement for a child.  Certainly individuals have open access to the courts and can choose to represent themselves in court in any type of proceeding.  However, this may not always be the best choice without first knowing, understanding and appreciating the ramifications of the action.

That said, in the recent unpublished deicion of Cacici v. Gallagher, A-4890-07T1, decided February 25, 2009 the parties had been divorced since 1997.  They had previously agreed to joint legal custody of their child and the defendant was designated primary residential parent.  This lasted for some time with plaintiff enjoying liberal visitation with the child.  Initially, after the divorce, the parties got along amicably and had a high level of communication with regards to issues involving their child.

In 2006, defendant was diagnosed with stage-four cancer and underwent surgery.  As a result of her serious illness, she was unable to care for the child and other issues related to the child emerged.  Plaintiff took residential custody of the child and on February 15, 2007, he was granted temporary residential custody of the child due to her difficulties in dealing with defendant’s illness.  The child was having documented difficulties in dealing with her mother’s illness that affected her school work, her moods, her personality, etc.  These changes were noted by the school’s counselors and the child’s therapist along with plaintiff.

In 2008, defendant filed, Pro Se (representing herself) an emergent application requesting additional parenting time with the child, alleging that plaintiff was alienating the child and that plaintiff would not allow the child to attend a pre-planned vacation with her  This application was denied and converted into a motion. Plaintiff filed a cross motion alleging several infractions of the parties’ Property Settlement Agreement and requesting a denial of defendant’s requests regarding parenting time and custody issues.


Continue Reading Change of Circumstances for Changing Custody