Visitation/Parenting Time

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As can be seen in the recent case of Vidal v. Gelak (an unreported/non-precedential decision), when judges do not examine these all-important factors, their decisions face reversal and remand on appeal.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

 It is well-settled law in New Jersey that prior to the relocation of a child from the this state by a custodial parent on a permanent basis, the parent first must formally request leave from the Court. The court will then examine the move under the factors set forth in the seminal case Baures v. Lewis, which guides the court’s relocation inquiry. In Baures, the Court recognized three now-established legal principals:

1. The relocation standard is based upon a custodial parent’s right to seek happiness and fulfillment, which in turn, benefits the child.
2. Upon relocation, the non-custodial parent’s communication and exposure to the child must be sufficient to sustain that relationship.
3. Finally, the custodial parent must provide proof that the child would not suffer as a result of the move.

While Baures is proverbial gospel when it comes to relocation from the State of New Jersey, an interesting question arose in the Ocean County trial Court in McKinley v. Naters, which was approved for publication (binding opinion) on April 13, 2011. Namely, the McKinley case examined whether the court should grant a contested application for a temporary removal of a child to another state for “extended vacation purposes” prior to a formal relocation hearing under Baures?

The parties in McKinley were divorced on December 10, 2002. They share one child together, whom the Court referred to as H.M. At the time of the divorce, the parties agreed to share residential (physical) custody of H.M.


Continue Reading Relocating with a Child and Taking an Extended Vacation: What Is the Standard?

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

Last week, the news reported the decision in the custody case involving Miami Heat guard, Dwyane Wade’s, children, after one of the longest custody trials ever in Cook County.  Apparently, a large part of Mr. Wade’s decision to seek sole custody of his children was allegations regarding his wife’s alienating behavior.  In the decision issued

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

Following on the heels of Eric Solotoff’s recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues.  In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator’s involvement in the highly contentious matter.

Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order.  In response to the plaintiff’s indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court.  A major issue of contention at both the trial level and on appeal was the parenting coordinator’s indication that she would charge the plaintiff for her time taken to respond to his numerous grievances. 

After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator’s fees owed.  The trial judge ultimately found for the coordinator, concluding that the plaintiff’s grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.


Continue Reading NEW APPELLATE DIVISION DECISION REGARDING PARENTING COORDINATOR GRIEVANCES AND FEES

War of the Roses style divorces do not just involved money.  Very often, they involve disputes regarding the children, pick up and drop off, inflexibility regarding changes to schedules, etc.  Is the proper remedy to reduce the amount of parenting time one party has to reduce the exchanges and thus reduce the change for conflict? As noted in the unreported (non-precedential) opinion in the case of Weiss v. Weiss, decided on November 24, 2010, one trial court said yes – the Appellate Division said no.  The Court reaffirmed that parenting time cannot be modified without a plenary hearing.

In this case, during the divorce, the parties had a noted child custody expert conduct a custody evaluation which was implemented, as were post divorce recommendations by that expert.  Apparently, due to the high conflict in the case, there was also a parent coordinator involved.  The expert had crafted a schedule such that the children never went more than 4 days without seeing their father. 

However, much conflict continued and much post-judgment litigation ensued.  The mother, who the father alleged was causing the problems, asked that the court change the parenting schedule causing a reduction in the parenting time the father enjoyed.  This reduction was contradictory to the expert’s opinion and was not recommended by the parent coordinator either.


Continue Reading Just Because Parties are Litigious and Cannot Get Along Does Not Mean Parenting Time Can be Altered