violation of parenting time order

One of the hardest questions to answer for a client is why a Court doesn’t enforce their own Orders.  The next hardest questions to answer are if they found the other side in violation of litigant’s rights, (1) why weren’t there any real consequences for the violation of the order and (2) why didn’t I get counsel fees.  The Court Rules suggest that a litigant is entitled to counsel fees if they are required to come to court to enforce an Order.  In addition, the court rules in the family part also include numerous provisions, including the imposition of monetary sanctions and counsel fees, for violation of a parenting time (visitation) Order. 

As such, it was interesting to see the unreported decision in the case of Friedman v. Friedman decided on March 7, 2011 wherein an awarded of sanctions for violating a parenting time order was affirmed by the Appellate Division.  In this case, the father asserted that the mother violated the parties’ parenting schedule when she "signed both children out of school and drove them to [Virginia]." As a result, the father sought sanctions against the mother "for making unilateral changes" to the parenting schedule "and for failing to cooperate with the recommendations of the Parenting coordinator."  The trial judge found that  the mother violated the parties’ parenting schedule and the recommendations of the parent coordinator by extending "the children’s time with her, in Virginia."  As a result, the mother was ordered ordered to pay the father $500.00 as a sanction plus reimburse him for his costs to file and serve the motion.  The decision was based upon the court’s finding that the mother had a history of failing to cooperate with the plaintiff.  In addition, the mother’s request to relieve the current parent coordinator was denied.


Continue Reading Sanctions Actually Granted for Interference with Parenting Time

Previously, we blogged about a trial court opinion that allowed a parent to seek damages for interference with custody/parental alienation.  In fact, we noted the conflicting trial court opinions released in the last year or so, one of which (in Hudson County) allowed a suit for intentional infliction of emotional distress in these matters, and another (in Morris County) which denied this relief for failing to state a claim.The Appellate Division weighed in on the Morris County case on May 3, 2010, affirming Judge Rand’s decision to dismiss the case in Segal v. Lynch.  This was a reported, thus precedential opinion.

While rejecting the trial court’s decision to dismiss the case based upon the "Heart Balm Act" which prohibited suits for interference with a marital relations, the Appellate Division nonetheless decided that the suit was barred based upon best interest and public policy considerations.  In doing so, the court held:

We acknowledge with equal force, however, that plaintiff’s cause of action raises profound questions of public policy concerning the propriety of permitting a parent to utilize a child’s loss of affection for him or her as grounds for civil liability against the other parent. On its face, such a cause of action has the potential to deteriorate into an abusive process; it can be wielded like a sword by an emotionally
distraught parent with little to no consideration of how the litigation will affect the child. Most alarming is the potential for great harm such a cause of action would pose to the child.

Our overarching consideration in all matters concerning children involved in the judicial system is "the best interests of the child." This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child. Application of this principle to the case at hand leads us to one inexorable conclusion: plaintiff’s cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children
involved in this suit.


Continue Reading APPELLATE DIVISION REJECTS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS REMEDY FOR INTERFERENCE WITH CUSTODY