Visitation/Parenting Time

In the case of M.C. v. P.C. (unreported, non-precedential), Judge Jones explores the issues surrounding mid-week overnight parenting time during the school year and its effect on the best interests of the children. In many cases, both parents live close by and are routinely exercising parenting time on weekdays in addition to weekends. While frequent and continuing contact with both parents is almost always positive for the child, it does not come without issue in the post-divorce context. We frequently see cases where one parent refuses to complete homework or take the child to soccer practice during their weekday parenting time.

The facts of this case are simple. The parents have two children, ages 8 and 10. As part of their divorce agreement, one parent was the primary residential custodial parent with the other parent having reasonable and liberal parenting time, to include every Thursday evening overnight into Friday mornings.

The primary parent, who works in the children’s school (but is not their teacher) filed an application to modify midweek overnight parenting time asserting that the children often come to school unprepared on Friday mornings and without their homework completed. It was alleged that the primary parent then has to rush around on Friday mornings assisting the children with completing their assignments before school formally begins. The noncustodial parent obviously denies same, however the Court noted that neither party produced any corroborating evidence so the Court was forced to rely upon the parties own testimonial positions.

In its analysis, the Court took “judicial notice” (meaning something is so well known it cannot be reasonably doubted) that education is one of the most important aspects of a young child’s life. The Court noted that children “need to learn from both parents, as early as possible, that tending to homework, test preparation and general scholastic readiness must take an appropriately high priority in a child’s schedule”.

That said, even in the cases where the parents are entirely cooperative, when the children go back and forth between households, this creates another layer of difficulty in trying to implement these fundamental educational values and maintain consistency. The Court opined while it is conceivable that back and forth parenting time could cause a child to incur a significant distribution and a loss of appropriate focus on meeting scholastic responsibilities, it is not per se harmful or contrary to a child’s best interests. As with many issues that arise in a family law matter, it is fact-sensitive and case specific given that each family and child is unique.

The Court goes on to remind that:
“Shared parenting” means more than simply counting the hours and minutes a child stays under a parent’s roof but also involves each parent meeting his or her responsibilities during such a time rather than unilaterally passing it off onto the other parent. Put another way, a parent cannot insist on simply taking the children for parenting time while siphoning out the parenting obligations which naturally continue to exist during such times. If a parent wants midweek overnight parenting time during a school year, that comes with all of the scholastic responsibility and other midweek obligations, in one integrated package.

The Court noted that although the primary parent’s testimony was persuasive there were evidentiary obstacles insofar as how prevalent the deficiencies that were complained of really were. Was this a situation where the child only missed 1 out of 10 assignments or a situation where the child’s backpack was not even opened with nothing done at all? The Court noted that evidence could have been presented by school records, testimony from teachers, lower test scores or any other evidence of the children’s lack of readiness on Fridays, as compared with other days when the children are in the care of the primary parent.

In sum, the Court found that there was insufficient evidence to make a specific finding that the homework issue was so prevalent as to require an immediate elimination of midweek overnight parenting time but established a helpful protocol for the parties moving forward as to how to deal with the issue of homework.

What can be taken away from this is case is how important it is to be fully prepared when presenting your application to the Court. Had the primary parent produced more corroborating evidence as to the magnitude of the missed assignments (assuming it was substantial), the outcome may have been different. It is always important to seek the advice of experienced counsel when presenting any application (especially an application to modify an existing arrangement/order) to the Court.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

An article today on Time’s website discussed the findings of a study comparing the behavioral trends of children of divorce from wealthy and lower income families.   The study, which was conducted by researchers at Georgetown University and the University of Chicago, divided a sample of approximately 4,000 children into three groups by income.  Interestingly, the study also analyzed at what age children are most prone to behavioral issues following divorce.

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The report ultimately concluded that children of divorce from higher-income families exhibit greater behavioral issues than those of lower-income families, with the most likely group affected being that of the 3-5 year old age range.   Separately, custody-based research often finds that, barring other potential issues, children are better equipped to handle an equal, shared parenting arrangement as they get older.  The possible reasons for such signs seem to be more speculative than anything else – for instance, “dads, who are usually the breadwinners, often move out of the home so there’s a big dip in household income. Or it could be that the kids have to move to a new neighborhood/school/friend group and the instability takes a toll. Or maybe less-wealthy families don’t take it so hard.”  Notably, however, there was no definitive answer for such results, noting that income differences alone could not be the cause.  For lower-income families, one researcher noted that the quality of the home environment mattered most to “social and emotional well-being.”

Also interesting was the study’s conclusion that parental separation had no impact on kids ages 6 to 12.  As a threshold matter, 6 to 12 is a very large age range and, notably, the study does not seem to parse out exceptions, instead making a blanket statement that there was no impact.  Improvements in behavior were found in those wealthier children – older than age 6 – who assimilated into stepfamilies.  While the article does not delve further, perhaps this is because of the structure provided by a stepfamily unit.  This, perhaps, is also the basis for why children of married couples were found to be more impacted, or exhibit greater behavioral issues, than those of cohabiting parents.

Whether you as a parent need to take additional steps to address such behavioral issues depends on the given set of circumstances and, most importantly, your particular child.  Providing your child with love and support, and always telling them as much, is fundamental to being a parent.  Perhaps the issues, however, are merely a temporary adjustment to the end of the family unit that your child once knew.  Perhaps your child is just getting older and exhibiting signs that, ultimately, have nothing to do with the divorce at all.  Maybe there are issues at school with friends or teachers, or some degree of anxiety caused by another factor not previously considered.

Working with your former spouse to determine the best course of action for your child is ideal, putting aside differences between you for your child’s long-term benefit.  While not all parents agree to a therapeutic route, especially for younger children, it may be the most appropriate path.  There are many different types of therapy that can address a child’s behavioral issues, depending on the specific facts at issue.  For instance, if your child is acting out because he does not want to see your former spouse, or perhaps his relationship with your former spouse is truly damaged and in need of structured, therapeutic repair, a reunification therapist may be appropriate.  Perhaps the behavioral issues result from how you and your former spouse interact with each other.  With the emotional toll of the divorce now behind you, can you work together for the best interests of your children?  Maybe family therapy is needed, or maybe even just therapy for the divorced parents to learn how to work better together.  While sitting in a room with your former spouse may seem less than ideal, the positive impacts that may befall upon your kids could be invaluable and long-lasting.

THE TAKEAWAY

The results of this study are very interesting, especially when considered on the heels of my most recent post discussing divorce and income inequality.  Should your child exhibit behavioral issues after the divorce (or, perhaps, even during the divorce), it is critical that you take appropriate steps, preferably with your former spouse, to ensure that the child’s best interests are served both in the short and long-term.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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Highly acrimonious custody disputes abound for countless reasons, many of which are tied to the specific facts and circumstances of a given case.  A determination of the most appropriate custody arrangement (joint or shared legal and residential custody) and parenting time schedule can be a difficult process, especially when multiple custody evaluators are retained to render his or her own recommendations as to what is in the best interests of the child – the governing standard relied on by family judges.  Ultimately, the goal espoused by the New Jersey legislature through its governing laws is to ensure that each parent enjoys a relationship with the child that is in that child’s best interests.

parents and kid

Following that line of reasoning, the Appellate Division in S.M. v. K.M.a recently published (precedential) decision, reversed a trial court decision denying a father any contact with his two children until criminal charges against him were resolved.  The Appellate Division also remanded to the trial court for a hearing involving the prosecutor, criminal defense attorney, and family lawyers, to address the issue of parenting time while criminal charges are pending.  While the specific facts of the case are interesting, it is the Court’s broader statements that merit greater attention in their application to many of the custody disputes that we encounter – especially when allegations of alienation or, more simply, a lack of enforcement to address parenting time violations are involved.

As the factual and procedural history is long and complicated, I provide a brief breakdown of the highlights.  In November 2011, Dad was served with a temporary restraining order based on allegations that he was abusive to one of the kids and to Mom.  As the allegations involved Dad’s use of weapons, the police went to the home and discovered a legally registered handgun.  Also discovered, however, were illegal hollow point bullets, which led to Dad being charged with a weapons offense.  Shortly thereafter, Dad filed a complaint for divorce and a January, 2012 order reflected the parties’ consent to Mom retaining temporary custody of the children and Dad being prohibited from any form of contact with Mom.  Mom voluntarily dismissed her restraining order.  Importantly, the order also provided that Dad “shall have visitation with the minor children of the marriage in accordance with the dictates of the Morris County Prosecutor’s Office and/or the Court[.]”  A custody expert was appointed, and Dad consented to undergoing a drug and alcohol assessment.  Shortly thereafter, the Division of Child Protection and Permanency (DCPP) issued a letter concluding that the allegations of abuse against Steve were substantiated, but it took no further action.

The custody expert’s report conveyed that the situation largely involved he said/she said allegations between Mom and Dad.  Notably, the report conveyed Mom’s statement that the children wanted no relationship with Dad, and were “traumatized and fearful of him.”  Mom also expressed how it would not be in the kids’ best interests to even have supervised parenting time with Dad.  Telling of Mom’s potential involvement of the children in the litigation, the children, when meeting with the expert, referred to their opinions of their relationship with Dad as “we.”  The expert noted, as a result, that it was difficult to tell if the children were expressing their own views, or those shared by Mom.  The report’s concluding sentiment was that the goal for the family was for the children to have a positive relationship with Dad.  As a result, he recommended that the kids see a therapist or counselor with expertise in “high conflict divorce cases”, and that Dad should join the sessions once the children develop a rapport with the counselor.  Depending on how those sessions went would then help guide next steps in the relationship.

Shortly thereafter, the criminal judge maintained the “no contact” condition of Dad’s bail, explaining that he would follow the family judge’s ruling on the issue.  The family judge then denied Dad’s request for “therapeutic visitation”, finding that it would be contrary to the children’s best interests.  Approximately two months later, in November, 2012, Dad was indicted for second-degree endangering the welfare of a child, second degree possession of a weapon for an unlawful purpose, and fourth degree aggravated assault.

In March, 2013, the substance evaluator determined that Dad was a “consistent blackout drinker to a degree much greater than he is aware and/or willing to admit.”  Among other recommendations, the expert agreed with the custody expert’s parenting time recommendations.  The following month, Dad again filed a motion for therapeutic visitation with the children, certifying therein that he had not seen the kids since November 2011 – almost a year and a half earlier.  Dad added that he would undergo therapy and that he should have parenting time in accordance with the experts’ recommendations.  The family judge, however, denied Dad any contact with the kids – and decided as much without any oral argument on Dad’s motion, which is pretty astonishing considering the issues that were before the court.  The only reason given in the written decision for denying contact was that “the Court is not convinced that granting Plaintiff’s request for supervised therapeutic visitation would be in the best interest of the children during the pendency of the criminal proceedings against plaintiff.”

While motions for leave to appeal are often not granted during a divorce proceeding, the issues here were of such an emergent nature that the Appellate Division granted Dad’s application.  In its decision, the Appellate Division reasoned that such relief was appropriate:

because depriving children of all contact with their father is an extreme measure that, if improperly imposed and maintained for a lengthy period of time, could cause severe injury to the children.

The importance of preserving the parent/child bond came through loud and clear in the Court’s decision:

Not only do parents have a constitutional right to enjoy a relationship with their children, In Re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), children likewise have the right to visit with their parents after they have been removed from the parent’s home. N.J.S.A. 9:6B-4A(e). This is so even if the children verbalize a desire not to see the parent, as happened here.  The Children’s Bill of Rights states that a child has the right “to visit with [his or her] parents or legal guardians . . .” or to “otherwise maintain contact with [his or her] parents or legal guardian. . . .” Ibid. A child’s best interests are generally fostered when both parents are involved with the child, assuring the child of frequent and continuing contact with both parties. Finamore v. Aronson, 382 N.J. Super. 514, 523 (App. Div. 2006).

Relying upon such precedent, the dictates of Rules 5:12-6 and 3:26-1(b) (addressing a family judge’s authority to restrict contact between a parent and child while a criminal part “no contact” order is in place as a condition of bail), and directives issued by the Administrative Office of the Courts (designed to protect victims of domestic violence while ensuring the effective handling of situations where there exists both a pending child protective services action and a criminal complaint against a parent), the Appellate Division noted that the family judge failed to properly include the prosecutor and criminal defense attorney in a hearing to determine whether and what type of parenting time is appropriate for the accused parent.  On remand, the judge was also required to determine if such a hearing was necessary, since, apparently, neither parent requested such relief, or whether oral argument, alone, would suffice.

While the facts and circumstances of this precedential decision are tied, in great part, to the criminal issues and related procedures, the Court’s intent on ensuring the preservation of a child’s relationship with both parents is telling of how carefully it will scrutinize a situation such as this to ensure that the best interests of the children are being properly served and appropriately determined.

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Although none of us can see the future (not yet anyway), when drafting a divorce agreement it is absolutely imperative to include as many potential future scenarios that you foresee to occur.  Equally, if not more important, is to actually spell out exactly what your intentions and expectations are and provide examples if necessary.  More often than not, a client inquires as to why the precise wording matters so much when “everyone really knows what that provision is supposed to mean”.  Unfortunately, this could not be further from the truth.  While you may have one interpretation of a specific provision, your ex may have another.  Even if you both have the same understanding at the time the agreement is signed, if the provision is vague and ambiguous, this allows one party to come later and argue that it really meant something different.  This issue typically rears its head down the road when one party is seeking to enforce a provision of their Agreement that is somewhat vague and ambiguous.

In the unpublished (non-precedential) recent case of N.G. v. N.B.G., the Appellate Court reversed and remanded for further proceedings the trial court’s denial to fully address the father’s request for increased custody and parenting time under the terms of their Marital Settlement Agreement.   This case may have had a very different result had the parties not been clear about their intent and expectations in their Agreement.

In the parties’ Marital Settlement Agreement, it specifically noted that after one-year under the current parenting time plan, they would revisit the father’s parenting time schedule for a possibility of increasing parenting time.  If the parties did not agree to a modification, then either party had the right to seek a de novo review (essentially a fresh look) from the Court of the parenting schedule.  As could be predicted, after the one-year period, the parties did not agree to a modification and the father sought additional parenting time from the Court.

The trial court denied the father’s request finding that although their agreement allowed for such application, there was no “big change” in circumstances that would lead her to believe it would be in the children’s best interests to have additional parenting time with the children.  The Appellate Court found this to be in error given that the trial court incorrectly focused on the need for a “big change” rather than focusing the children’s best interests.  The court also noted that the parties’ expressly bargained for provision of their Marital Settlement Agreement requiring de novo review (i.e. the existing order was not binding and they were supposed to start from scratch) was not utilized by the court in the disposition of the father’s application.  The Appellate Court remanded the case to the trial level finding that a plenary hearing (trial) was necessary given the conflicting perceptions of the parties, the passage of time and intervening events. The Court felt that a full hearing would best effectuate the express intent of the parties’ Agreement and the reasonable expectations of both parties.

The take away here is that the intention is that there be a de novo review, you may want to spell out exactly what is supposed to happen at the time of the review.

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Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution.  Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Just in case you find yourself rereading the title of this blog over and over thinking you missed something, I promise you read it correctly the first time. Every divorced/divorcing parent should be thankful for their ex (or soon to be ex) spouse. As a divorce attorney, I realize that such a lofty suggestion is a hard feat to accomplish year round, even for parents who are happily married.

Our lives have become complicated and chaotic.  The concepts of “multi-tasking” and “work-life balance” test our will each and every day.  We spend our days rushing through life from what seems to be one obligation after the other.  After people divorce, another layer of complications are thrown into the mix.  The spouse on whom you used to rely upon to have dinner ready at 6:00 p.m. or pick up Johnny from soccer practice is no longer there each day.  These now “single parents” are forced to fill, not only the daily multiple roles they already filled during the marriage (dinner maker, dog walker, homework helper, carpool driver, etc.), but now they are required to take on the daily roles of the other spouse as well.

I realize that because of our overly busy lives, it is easy to lose sight of how much your ex really does for the children you share.  Therefore, I suggest that on Thanksgiving, a holiday specifically dedicated to “thankfulness” for the many blessings in life, you should also be thankful for your ex.  I dare to go as far to say that you should consider sharing this thankfulness with your ex.  While you may not be able to the first Thanksgiving you spend apart, you will find that you may muster up the courage as the years pass and your children grow older.  The old adage “a little goes a long way”, in my experience, is therapeutic for divorced parents trying to co-parent.

To be clear, I am in no way suggesting that this “thankfulness” requires a grandiose gesture – in fact, just the opposite.  Even just a simple “thank you” in a short note or when you are dropping the children off for holiday parenting time with your ex, will work wonders to ease the strain on your relationship.  More importantly, these small gestures remind your children that even though their parents are no longer married that does not mean they should not be thankful for their family.

In the end, one simple important fact remains — without your ex, your children as you know them, would not exist.  Remind your ex the inverse of this is true as well.   You may even find yourself thanking them more than once a year.

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Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution.  Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Earlier this year, we blogged about  of our colleague, Aaron Weems’ post on our firm’s Pennsylvania Family Law Blog, which advised that any recommendations by a parent coordinator would be given a de novo review by a court.  A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

This week, Aaron posted a piece entitled New Rule: No Parent Coordinators Allowed on that blog.  Aaron advises that the Pennsylvania Supreme Court enacted a new rule that stated:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013)….

Aaron noted that this ended the quasi-judicial role of parent coordinators.  He also wondered whether this would result in increased enforcement and modification proceedings. 

As I noted when commenting on Aaron’s prior post regarding the de novo review:

Isn’t that was it supposed to happen in NJ? Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review. That said, it really wasn’t a de novo review because the court would have the recommendation made by the parent coordinator. All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened, 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered. On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

As I blogged previously, New Jersey, while ending the pilot program, does not preclude the appointment of parent coordinators.  If courts defer blindly to the recommendations of parent coordinators, without thoroughly reviewing the issues, will New Jersey be next to totally bar their use? 

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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.

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.

Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm’s Pennsylvania Family Law Blog wrote an excellent post entitled "Trial Court Must Conduct De Novo Hearings on Parent Coordination Appeals."  As Aaron notes:

 A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

Isn’t that was it supposed to happen in NJ?  Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review.  That said, it really wasn’t a de novo review because the court would have the recommendation made by the parent coordinator.  All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened. 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered.  On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

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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.

Very often, clients ask us how old their child has to be before he or she can choose which parent they want to live with.  The answer is not a simple one.  In most cases, absent undue influence or improper involvement of a child in the matter (or worse yet, alienation), once a child is a teenager, their wishes, while not determinative, should at least be considered.  Again, the age and weight given a teenagers wishes varies from judge to judge.

In fact, I tried a case a few years ago where it was undisputed that all of the children said that they wanted to spend more time with the father.  However, it was also undisputed that the father repeatedly improperly involved the children in the matter, or worse, and this, it was also undisputed that additional time with the father was not in the children’s best interests.  As a result, his request for more time was denied.  About two years later, he tried to get more time again.  The motion judge (now a second judge hearing this issue) denied it because the submissions confirmed that the father was still improperly involving the children.  Two months later, with no new facts, and no evidence that more time was in the child’s best interests, a third judge let the 17 year old go live with the father because it was this judge’s belief that, unequivocally, a teenager can choose where they want to live.

This concept was recently discussed in the case of M.I. v. B.I., an unreported (non-precedential) Appellate Division decision released on January 23, 2013.  In this post-judgment case, the Appellate Division repeated the concept that the law requires that a teenager’s (here a 15 year old) preference be considered absent evidence that the child was overly influenced by the parent with who she wanted to live.

Continue Reading Absent Evidence of Undue Influence by a Parent, the Wishes of a Teenager When it Comes to Custody Must at Least Be Considered

We don’t typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights – that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated. 

The case I’m talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.  In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered.  The parties ultimately agreed to a joint expert to do the evaluation,  That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.

SYSTEMIC ISSUE #1:  All custody and best interest evaluations are supposed to take 90 days or so.  That almost never happens.  Rather, it is not unusual for it to take 6 months or longer to get a report.  If it is a joint or court appointed expert, the party who doesn’t like the report has the right to get their own report so add another several months to the process.  As in this case, where the mother’s custody with her own child hinged upon this report, the prejudice cannot be quantified.

Continue Reading Getting Temporary Custody of a Relative Does Not Make You the Psychological Parent