SHAW DIVORCE & FAMILY LAW LLC
New Jersey Divorce Guide
A comprehensive free guide to divorce and family law in the State of New Jersey.
CHILD CUSTODY IN NEW JERSEY
SOMERSET COUNTY CUSTODY BASIC OVERVIEW
- Court will set custody in the best interests of the child.
- “Best interests” means child’s safety, happiness, physical, mental, and moral welfare.
- Both parents have equal rights regardless of gender.
- Parents enjoy constitutional presumption over third parties as to custody.
- Two parts: (1) legal custody; and (2) physical custody.
- Legal custody means responsibility for major decisions.
- Physical custody refers to logistical arrangement by which each parent spends time with children.
- Joint legal custody is very common. Joint physical custody is rare, but becoming more common with time.
- Court will consider practical realities, including proximity of homes and work schedules.
- Generally, Courts will strongly consider expert testimony, but Court remains may accept, accept in part, or reject such testimony.
- Court will accept any agreement between parties unless contrary to the best interests of the child.
- Custody always subject to modification based on “changed circumstances.”
- Permanent relocation with children to another state generally requires Court Order.
SETTING CUSTODY / BEST INTERESTS OF THE CHILD
AT FINAL JUDGMENT. “When initial custody is decided, either by judicial ruling or by settlement, the ultimate judgment is squarely dependent on what is in the child’s best interests.” [Baures v. Lewis, 167 N.J. 91 (2001).] Indeed, “[t]he touchstone for all custody determinations has always been ‘the best interest[s] of the child.'” [Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009).] “Notwithstanding any other provisions of law to the contrary, in any action concerning children undertaken by a State department, agency, commission, authority, court of law, or State or local legislative body, the best interests of the child shall be a primary consideration.” [N.J.S.A. 9:2-4a.]
Best interests of the child means, among other things, the “safety, happiness, physical, mental and moral welfare of the child.” [Fantony v. Fantony, 21 N.J. 525, 536 (1956).]
Courts strongly encourage settlement of custody disputes. If you and your spouse agree on how to set custody, the Court will interfere with that agreement only in the rarest circumstances: “The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.” [N.J.S.A. 9:2-4(d).] Generally, it is only when the parties cannot agree that the analysis below becomes relevant.
The best-interest analysis is “superimposed upon an analysis of the statutory scheme.” [Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994).] When the Court must decide custody, it is required by statute to consider at least the following fourteen factors:
- 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; and
- the age and number of the children. [N.J.S.A. 9:2-4.]
PENDENTE LITE. Divorce cases in New Jersey often require a significant amount of time, sometimes years, to get to final judgment. When temporary custody is set pendente lite (which is a Latin term meaning “during the proceeding”), the Court must determine custody based on the best interests of the child with due regard for the status quo during the marriage: “Until the court determines the final custody of the minor child and unless the parties agree otherwise, the court shall determine temporary custody based upon the best interests of the child with due regard to the caretaking arrangement that previously existed.” [N.J.S.A. 9:2-3.] This standard employed during the proceeding is more flexible and discretionary than the standard at final judgment.
(Please see the subsection below entitled “What is the difference between an interlocutory order and a final order?” for more information on how to tell the difference between pendente lite and final orders.)
TWO PARTS TO CUSTODY IN NEW JERSEY (LEGAL & PHYSICAL)
Legal custody refers to the the legal authority and responsibility for making major decisions regarding the child’s welfare. [Beck v. Beck, 86 N.J. 480 (1995).]
Physical custody, which is also referred to as visitation or parenting time, refers to the logistical arrangement whereby the parents share the companionship of the child and are responsible for minor day-to-day decisions. [Beck v. Beck, 86 N.J. 480 (1995).]
LEGAL CUSTODY IN NEW JERSEY
As stated above, legal custody refers to the the legal authority and responsibility for making major decisions regarding the child’s welfare. [Beck v. Beck, 86 N.J. 480 (1995).]
In a joint custody situation, the parents share that responsibility.
Joint legal custody is found “in the majority of custody arrangements throughout the country today,” but joint physical custody is “rare.” [Pascale v. Pascale, 140 N.J. 583 (1995).]
When will the Court set joint physical custody? In short, when it is in the best interests of the children. Nonetheless, the New Jersey Supreme Court has provided a specific inquiry that lower courts should engage in when considering joint physical custody:
“First, before embarking on a full-blown inquiry into the practicability of a joint custody arrangement, the court must determine whether the children have established such relationships with both parents that they would benefit from joint custody. For such bonds to exist the parents need not have been equally involved in the child rearing process. Rather, from the child’s point of view it is necessary only that the child recognize both parents as sources of security and love and wish to continue both relationships.” [Beck v. Beck, 86 N.J. 480 (1995).]
Second, the New Jersey Supreme Court has held that, to qualify for joint legal custody, the parties must be able to communicate, cooperate, and compromise in the best interests of the child.
“The most troublesome aspect of a joint custody decree is the additional requirement that the parent exhibit a potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Moreover, the potential for cooperation should not be assessed in the ‘emotional heat’ of the divorce.
‘If the parents outside of the divorce setting, have each demonstrated that they are reasonable and are willing to give priority to the best interest of their child, then the judge need only determine if the parents can separate and put aside any conflicts between them to cooperate for the benefit of their child. The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them.’” [Beck v. Beck, 86 N.J. 480 (1995).]
If a parent fails to comply with a joint custody arrangement, it may be appropriate, as a remedy of last resort, to award sole custody to the more cooperative parent.
“Traditional enforcement techniques are singularly inappropriate in a child custody proceeding for which the best interests of the child is our polestar. Despite the obvious unfairness of allowing an uncooperative parent to flout a court decree, we are unwilling to sanction punishment of a recalcitrant parent if the welfare of the child will also suffer. However, when the actions of such a parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.” [Beck v. Beck, 86 N.J. 480 (1995).]
Nonetheless, it must be noted that Beck v. Beck was decided by the New Jersey Supreme Court in 1995. While it is still technically good law, the landscape has changed dramatically since then. It is now very rare to obtain an award of sole legal custody. From a practical standpoint, it is extremely difficult unless you can show the other parent to be unfit (e.g., alcoholism, drug addiction, or serious mental health issues).
PHYSICAL CUSTODY IN NEW JERSEY
Joint legal custody is found “in the majority of custody arrangements throughout the country today,” but joint physical custody is “rare.” [Pascale v. Pascale, 140 N.J. 583 (1995).]
It should be noted, however, that just as joint legal custody is virtually automatic in recent years, joint physical custody has become increasingly common as well (although not nearly to the same degree as joint legal custody).
“Although there is no established norm for such custody, experts cite common schedules for a child within a joint physical custody framework as spending three entire days with one parent and four entire days with another parent or alternating weeks or even years with each parent.” [Pascale v. Pascale, 140 N.J. 583 (1995).]
“‘[J]oint physical custody’ means that the child lives day in and day out with both parents on a rotating basis. Numerous ‘parenting times’ with a child do not constitute joint physical custody; to constitute joint custody, each parent must exert joint legal and physical custody over the child.” [Pascale v. Pascale, 140 N.J. 583 (1995).]
When will the Court set joint physical custody? In short, when it is in the best interests of the children. Nonetheless, the New Jersey Supreme Court has provided a specific inquiry that lower courts should engage in when considering joint physical custody:
“In addition to the factors set forth above [relating to joint legal custody], the physical custody element of a joint custody award requires examination of practical considerations such as the financial status of the parents, the proximity of their respective homes, the demands of parental employment, and the age and number of the children. Joint physical custody necessarily places an additional financial burden on the family. Although exact duplication of facilities and furnishings is not necessary, the trial court should insure that the children can be adequately cared for in two homes. The geographical proximity of the two homes is an important factor to the extent that it impinges on school arrangements, the children’s access to relatives and friends (including visitation by the noncustodial parent), and the ease of travel between the two homes. Parental employment is significant for its effect on a parent’s ability properly to care for the children and maintain a relationship with them. The significance of the ages and number of the children is somewhat unclear at present and will probably vary from case to case, requiring expert testimony as to their impact on the custody arrangement.” [Beck v. Beck, 86 N.J. 480 (1995).]
For practical reasons, proximity of the parents’ homes and work schedules are likely the two most important considerations for any Court. Joint physical custody is feasible only if both parents can transport the child to and from school. That is, quite frankly, not possible when one parent lives far from the school district. Moreover, Courts are reluctant to require the children to travel significant distances between the parents’ homes.
Finally, “as in all custody determinations, the preference of the children of ‘sufficient age and capacity’ must be accorded ‘due weight.’” [Beck v. Beck, 86 N.J. 480 (1995).] [N.J.S.A. 9:2-4.]
EFFECT OF PRIMARY PHYSICAL CUSTODY ON CONTROL OF CHILD SUPPORT AND MAJOR DECISIONS
For example, the primary caretaker is awarded authority and autonomy over child support. “The primary caretaker who makes those day-to-day decisions needs autonomy over the financial resources drawn from both parents’ salaries to effectuate those decisions without endless discussion with the secondary caretaker.” [Pascale v. Pascale, 140 N.J. 583 (1995).]
Likewise, the primary caretaker may be provided the tie-breaking vote when there is a significant disagreement between parents. In one case, where the parents could not agree whether their child should undergo surgery to correct a blockage of her nasal passages, the Court allowed the primary caretaker, despite joint legal custody, to make the final decision. [Brzozowski v. Brzozowski, 265 N.J. Super. 141 (Ch. Div. 1983).]
Similarly, in another case, the Court allowed the primary caretaker to block the secondary caretaker from enrolling the children in CCD classes because those classes were contrary to his decision to educate them in the Jewish faith. Nonetheless, the secondary caretaker can take the children to religious services during his or her parenting time; it was the formal education in a second faith that the Court refused to permit. “Allowing the non-custodial parent to formally educate the children in a second religion, through CCD classes, as here, runs contrary to the right that the primary caretaker has to educate the children in the religion of his choice. This decision does not prohibit the mother from taking her children to religious services of her choice during her visitation, which is her constitutional right. It is implicit in protecting the primary caretaker’s right to raise and educate his children in his chosen religion to prevent others from simultaneously educating the same children in an alternate religion.” [Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005).]
The effect of primary physical custody on control over the children’s upbringing is a critical consideration. Please keep it in mind when negotiating settlements.
PARENTS’ CONSTITUTIONAL RIGHTS
A parent’s right to the companionship of a child is a fundamental interest protected by the Federal and State Constitutions. [In the Matter of Baby M, 109 N.J. 396, 447 (1988).]
“Federal jurisprudence, reaffirmed over nearly a century, recognizes that the Due Process Clause of the Fourteenth Amendment protects the ‘right … to direct the education and upbringing of one’s children.'” [Major v. Maguire, 224 N.J. 1, 14 (2016).]
“The right to rear one’s children is so deeply embedded in our history and culture that it has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” [Moriarty v. Bradt, 177 N.J. 84, 101 (2003).]
“The … primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” [Moriarty v. Bradt, 177 N.J. 84, 102 (2003).]
However, “[t]o be sure, the constitutional imperative of preserving familial integrity is not absolute.” [Moriarty v. Bradt, 177 N.J. 84, 102 (2003).]
“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, … we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later, … we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained … that ‘[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ We returned to the subject … and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’” [Troxel v. Granville, 530 U.S. 57, 65-66 (2000).]
“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’” [Stanley v. Illinois, 405 U.S. 645, 651 (1972).]
“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” [Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).]
“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.” [Quilloin v. Walcott, 434 U.S. 246, 255 (1978).]
“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course.” [Parham v. J. R., 442 U.S. 584, 602 (1979).]
Parents have a “fundamental liberty interest of natural parents in the care, custody, and management of their child.” [Santosky v. Kramer, 455 U.S. 745, 753 (1982).]
“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the `liberty’ specially protected by the Due Process Clause includes the righ[t] . . . to direct the education and upbringing of one’s children.” [Glucksberg, 521 U.S. 702, 720 (1997).]
“In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” [Troxel v. Granville, 530 U.S. 57, 66 (2000).]
EQUAL RIGHTS OF PARENTS TO CUSTODY
“In any proceeding involving the custody of a minor child, the rights of both parents shall be equal[.]” [N.J.S.A. 9:2-4.]
CUSTODY NOT DEPENDENT ON PAYMENT OF CHILD SUPPORT
“We reject defendant’s notion that there is a linkage between plaintiff having custody of the children in Canada and his parental support obligation. N.J.S.A. 2A:4-30.45 provides that ‘[t]he determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court.’” [Ross v. McNasby, 259 N.J. Super. 410 (App. Div. 1992).]
The underlying statute was later repealed, but the principle remains effective.
DUTY TO FOSTER RELATIONSHIP WITH NONCUSTODIAL PARENT
Generally, to request modification of a custody order, you file a motion requesting modification. The process of filing a motion is more fully addressed elsewhere in the Guide: [Guide to Motions.] Further, there are certain procedural requirements. Specifically, “[w]hen a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion.” [R. 5:5-4(a).]
AFTER FINAL JUDGMENT. Even if custody has been set by a final order, you can always request that the Court to change custody (either legal, physical, or both) by filing a post-judgment motion. Modifying custody is a two-step process. [R.K. v. F.K., 437 N.J. Super. 58 (App. Div. 2014).]
First, the person requesting modification must demonstrate “changed circumstances” since the custody order or agreement was entered. Second, that person must show that the order or agreement is no longer in the best interests of the child. [Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135 (App. Div. 2003).]
Generally, where the person requesting modification presents at least some evidence in support of his or her case, the issue must be resolved through a hearing. [Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).]
Usually, the determination of parenting time requires a plenary hearing. “[T]he matter of visitation is so important . . . that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare, a plenary hearing must be required by the court even if the parties have waived it.” [Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).]
PENDENTE LITE. Divorce cases in New Jersey often require a significant amount of time, sometimes years, to get to final judgment. Notably, the “changed circumstances” standard above only applies after custody has been set by a final judgment. When custody has been set on a temporary basis (often referred to by the Latin phrase “pendente lite,” which means “during the proceeding”), the Court has the authority to modify its order at any time “for good cause shown and in the service of the ultimate goal of substantial justice.” [Lombardi v. Masso, 207 N.J. 517 (2011).] [R. 4:42-2.] The Court has “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.” [Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983).] This standard is far more flexible and discretionary than the “changed circumstances” standard that applies after final judgment has been entered.
WHAT IS THE DIFFERENCE BETWEEN AN INTERLOCUTORY ORDER AND A FINAL ORDER?
“[A]ny order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” [R. 4:42-2.]
An interlocutory order by its very nature is temporary and often entered based on incomplete or conflicting evidence. After all, the Court generally has not taken testimony at trial, allowed cross-examination, heard expert opinions, or had the benefit of complete disclosure of the relevant facts obtained during the discovery phase of litigation.
A final order/judgment does resolve all issue as to all parties.
“It is firmly settled that ‘final judgment,’ as used in the rules, means final judgment or final disposition of the case not only as to all issues but as to all parties.” [Thatcher v. Jerry O’Mahony, Inc., 37 N.J. Super. 139, 142-143 (App. Div. 1955).]
To constitute a final judgment, the order generally must “dispose of all claims against all parties.” [S.N. Golden Estates, Inc. v. Cont’l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998).]
Generally, in a divorce proceeding, every order is interlocutory until a final judgment of divorce is entered. When the order results from a post-judgment motion, however, it is generally final. But a post-judgment order may be interlocutory depending on the circumstances. For example, if further proceedings are scheduled by a post-judgment order (e.g., a plenary hearing), it is probably interlocutory.
The distinction between an interlocutory order and a final order can be quite tricky in the post-judgment context, and I strongly recommend consulting an experienced attorney.
ENFORCING SOMERSET COUNTY CUSTODY
Generally, to request enforcement of a custody order, you file a motion requesting enforcement. The process of filing a motion is more fully addressed elsewhere in the Divorce Guide: [Guide to Motions.] Please also review the section of the Divorce Guide on seeking enforcement of Court Orders: [Guide to Enforcement.] Further, there are certain procedural requirements. Specifically, “[w]hen a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion.” [R. 5:5-4(a).]
The New Jersey Court Rules identify ten possible enforcement measures that can be imposed when someone has violated a custody order:
- compensatory time with the children;
- economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent;
- modification of transportation arrangements;
- pick-up and return of the children in a public place;
- counseling for the children or parents or any of them at the expense of the parent in violation of the order;
- temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
- participation by the parent in violation of the order in an approved community service program;
- incarceration, with or without work release;
- issuance of a warrant to be executed upon the further violation of the judgment or order; and
- any other appropriate equitable remedy. [R. 5:3-7(a).]
The New Jersey Legislature has established the following remedies as well:
- The awarding of counsel fees of the aggrieved party against the party who violated the terms of the order;
- Community service;
- The awarding of compensatory time for the time with the child for which the party was deprived;
- The awarding of monetary compensation for additional costs incurred when a parent fails to appear for scheduled visitation; and
- Other economic sanctions which may be decided on a case-by-case basis. [N.J.S.A. 2A:34-23.3.]
THE CRIME OF INTERFERENCE WITH CUSTODY
“A person, including a parent, guardian or other lawful custodian, is guilty of interference with custody if he:
(1) Takes or detains a minor child with the purpose of concealing the minor child and thereby depriving the child’s other parent of custody or parenting time with the minor child; or
(2) After being served with process or having actual knowledge of an action affecting marriage or custody but prior to the issuance of a temporary or final order determining custody and parenting time rights to a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of depriving the child’s other parent of custody or parenting time, or to evade the jurisdiction of the courts of this State; or
(3) After being served with process or having actual knowledge of an action affecting the protective services needs of a child pursuant to Title 9 of the Revised Statutes in an action affecting custody, but prior to the issuance of a temporary or final order determining custody rights of a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of evading the jurisdiction of the courts of this State; or
(4) After the issuance of a temporary or final order specifying custody, joint custody rights or parenting time, takes, detains, entices or conceals a minor child from the other parent in violation of the custody or parenting time order.” [N.J.S.A. 2C:13-4(a).]
Interference with custody is generally a crime of the third degree, but it may be a crime of the second degree if the child was taken, detained, enticed or concealed either: (i) outside the United States, or (ii) for more than 24 hours. [N.J.S.A. 2C:13-4(a).]
There are, however, exceptions to the statute. You cannot be convicted of interference with custody if you prove, by clear and convincing evidence, that any of the following apply:
“(1) The actor reasonably believed that the action was necessary to preserve the child from imminent danger to his welfare. However, no defense shall be available pursuant to this subsection if the actor does not, as soon as reasonably practicable but in no event more than 24 hours after taking a child under his protection, give notice of the child’s location to the police department of the municipality where the child resided, the office of the county prosecutor in the county where the child resided, or the Division of Child Protection and Permanency in the Department of Children and Families;
(2) The actor reasonably believed that the taking or detaining of the minor child was consented to by the other parent, or by an authorized State agency; or
(3) The child, being at the time of the taking or concealment not less than 14 years old, was taken away at his own volition and without purpose to commit a criminal offense with or against the child.” [N.J.S.A. 2C:13-4(c).]
Furthermore, “It is an affirmative defense to a prosecution under subsection a. of this section that a parent having the right of custody reasonably believed he was fleeing from imminent physical danger from the other parent, provided that the parent having custody, as soon as reasonably practicable:
(1) Gives notice of the child’s location to the police department of the municipality where the child resided, the office of the county prosecutor in the county where the child resided, or the Division of Child Protection and Permanency in the Department of Children and Families; or
(2) Commences an action affecting custody in an appropriate court.” [N.J.S.A. 2C:13-4(d).]
Finally, “In addition to any other disposition provided by law, a person convicted under subsection a. of this section shall make restitution of all reasonable expenses and costs, including reasonable counsel fees, incurred by the other parent in securing the child’s return.” [N.J.S.A. 2C:13-4(f)(1).]
It should also be noted that the New Jersey Legislature has found as follows: “Proceeding criminally in cases where the terms of an order of visitation with a child has failed to be honored may be both difficult and inappropriate.” [N.J.S.A. 2A:34-23.2.]
CAN I RECORD MY CONVERSATIONS FOR USE IN A CUSTODY DISPUTE?
Under the NJWESA, the party who consents may also be the party who is recording. Therefore, if you are part of a conversation in New Jersey, you can record it. (Be cautious, though, because the law in other states varies.)
It should be noted that the Wiretap Act applies to wire, electronic, or oral communications, which is typically construed to include written electronic communications and sound recording, but not video.
Under limited circumstances, it is also legal to record a conversation involving your child even if you are not a party to the conversation. This exception to the general rule is known as “vicarious consent.” In short, the Court in State v. Diaz held that parents who secretly recorded a nanny engaged in physical abuse of their young child had not violated the Wiretap Act because they gave “vicarious consent” on behalf of the child. [State v. Diaz, 308 N.J. Super. 504 (App. Div. 1998).]
“‘Vicarious consent’ is bottomed on the need to act in the best interests of the child. It is not, however, a sweeping exemption, and blanket allegations of “best interests” simply will not suffice to render vicarious consent permissible under our Wiretap Act. On the contrary, what is required is a good faith basis that it is objectively reasonable for believing that consent on behalf of the minor to taping is necessary and in the best interest of the child.” [D’Onofrio v. D’Onofrio, 344 N.J. Super. 147, 156 (App. Div. 2001).]
Evidence gathered in violation of the New Jersey Wiretap Act may be suppressed in any proceeding. [N.J.S.A. 2A:156A-21.]
PARENT WITH PRIMARY PHYSICAL CUSTODY MOVING WITH CHILDREN OUT OF NEW JERSEY
Statutory law in New Jersey provides that “[w]hen the superior court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this state, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.” [N.J.S.A. 9:2-2.]
In 2001, the New Jersey Supreme Court addressed the standards governing relocation to another state by the custodial parent. [Baures v. Lewis, 167 N.J. 91 (2001).] Specifically, the Court addressed the standard for determining, “[w]hen removal is challenged under N.J.S.A. 9:2-2,” how the Court should determine whether there is “sufficient cause for the removal[.]” [Baures v. Lewis, 167 N.J. 91 (2001).]
The procedure established in that case was two-fold: First, the party seeking to move must produce at least some evidence (“prima facie” evidence) to establish that: (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child’s interests. Included within that prima facie case should be a visitation proposal. Second, once that prima facie case has been adduced, however, the burden of going forward devolves upon the noncustodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child’s interest. [Baures v. Lewis, 167 N.J. 91, 118 (2001).] The Court established twelve factors for making the final determination. [Baures v. Lewis, 167 N.J. 91, 116-17 (2001).]
That standard was interpreted as generally favorable to custodial parents. On August 8, 2017, however, the New Jersey Supreme Court dramatically altered the legal landscape in the case of Bisbing v. Bisbing. The Court abandoned its previous holding establishing a lenient standard for custodial parents seeking to permanently relocate with the child to another state. Instead, both parents will be on equal footing and the Court will determine the dispute pursuant to the best interests of the child. This is a sea change that many of us in the legal community were expecting ever since the social science underlying the previous standard was discredited.
Additionally, if there is an existing custody order, the request to move to another state with the child constitutes a request to change that order. Thus, the Court must determine the request like any other request to modify custody. Specifically, the Court must determine: (1) whether circumstances have changed in a manner that affects the best interests of the child; and if so, (2) whether the requested change would serve the child’s best interests. Previously, that standard did not apply to requests for relocation. Now, under Bisbing v. Bisbing, that standard applies to all changes to custody, whether the custodial parent is moving to Utah, altering days of the week spent with the child, or just trying to change the pick-up and drop-off times.
By far the most important holding of Bisbing v. Bisbing is that the lenient standard of Baures v. Lewis no longer exists. Instead, every request to relocate to another state by the custodial parent will be determined just like any other request to change custody. First, you need to demonstrate changed circumstances. Second, you need to demonstrate that the change would serve the best interests of the child. As a practical matter, this will make it substantially harder for custodial parents to move out of New Jersey.
Notably, the removal statute provides that children “shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.” [N.J.S.A. 9:2-2.] Thus, a child may be removed from the state with the child’s consent, if the child is of suitable age. In reviewing the removal statute in conjunction with other areas of the law, at least one Court found in a published decision as follows: “[T]his Court finds it to be clear that the Legislature intended the applicable age in the expression, ‘of suitable age,’ to be 14 years, as a chronological, prima facie starting point.” [Kavrakis v. Kavrakis, 196 N.J. Super. 385 (Ch. Div. 1984).] Subsequently, another Court found that children ages seven and eight were clearly too young to signify consent to removal. [McMahon v. McMahon, 256 N.J. Super. 524 (Ch. Div. 1991).]
Nevertheless, even when the child is of sufficient age to signify consent, the Court should still inquire as to whether the child’s consent is “informed, voluntarily given, and without duress or coercion.” [Kavrakis v. Kavrakis, 196 N.J. Super. 385 (Ch. Div. 1984).]
“To summarize, a court, faced with such removal, must make three inquiries:
1. Is the child of suitable age to signify consent to removal?
2. Was the consent “informed”?
3. Was the consent voluntary, i.e., without duress or coercion?
Where there is a genuine issue as to one or all of these questions, the court must conduct an in camera interview and hold a plenary hearing. At the conclusion thereof, if the court determines all questions in the child’s favor, then the child has the legislatively-given right to remove from this State without the consent of the remaining parent, without the necessity of a … hearing, and without the consent of the Court.” [Kavrakis v. Kavrakis, 196 N.J. Super. 385 (Ch. Div. 1984).]
PARENT WITH PRIMARY PHYSICAL CUSTODY MOVING WITH CHILDREN WITHIN NEW JERSEY
For many years, custodial parents had free reign to relocate to any other destination within the State of New Jersey. Although the primary physical custodian of the children must, as described above, apply for permission from the Court before relocating outside of New Jersey, “[t]here is, however, no corresponding requirement or burden of application placed upon a residential custodial parent who desires to move, with the child, from one location within New Jersey to another.” [Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003).]
The noncustodial parent had to argue that the custodial parent’s move within the State of New Jersey constituted a change in circumstances warranting modification of custody. “[T]he relocation of a child by the joint legal, residential custodial parent to another in-state location may constitute a substantial change in circumstances warranting modification of the existing custodial and parenting-time arrangement.” [Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003).] In analyzing that argument, the Appellate Division held that the factors under Baures v. Lewis (discussed above in relation to interstate relocation) should be applied to determine whether a modification of custody should occur: “When a non-residential custodial parent opposes the intrastate relocation of his or her child by the primary residential custodial parent on the basis that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests, those factors outlined by Justice Long in Baures, as well as other relevant matters, should be considered in determining whether modification of the custodial and parenting-time arrangement is warranted.” [Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003).]
In October 2019, the status quo may have changed with the Appellate Division’s decision in A.J. v. R.J., No. A-1168-18T4 (App. Div. October 7, 2019) (approved for publication). Therein, the Court held as follows: “[W]here a parent of primary residence seeks an intrastate relocation and the parent of alternate residence opposes it, the parent of alternate residence must convince the court the move constitutes a change in circumstance affecting the best interests of the children. If a prima facie case is established, the trial court must assess custody and parenting time, by applying the N.J.S.A. 9:2-4 factors to determine whether the best interests of the children requires a modification of one or both.” Because Baures v. Lewis is no longer good law (as discussed above), the Appellate Division clarified that it should not be applied in this context either. Instead, the custody factors under N.J.S.A. 9:2-4 should be applied.
The Appellate Division declined to decide which parent would be required to file a motion with the Court. Specifically, under footnote 4, the Court stated as follows: “We do not opine which parent must make the application to the court. However, in order to avoid a situation similar to this case, the obligation of each parent to keep the other apprised of a change in residence should be memorialized in writing regardless whether custody and parenting time are settled or adjudicated. This type of communication is not only common sense, but is the sort of communication envisioned by the Legislature as consonant with a child’s best interests….”
The Court in A.J. stopped short of explicitly requiring that a custodial parent obtain permission to relocate within the State of New Jersey. Thus, it is possible to view the decision as simply a slight modification to the status quo (i.e., applying the same general scheme but analyzing the custody factors of N.J.S.A. 9:2-4 rather than Baures v. Lewis). But the decision will almost certainly have broader consequences. In A.J., the custodial parent moved without the noncustodial parent’s consent from Elizabeth to Mount Holly, was ordered to return to Elizabeth, and when she violated that order by failing to return, the trial court transferred custody to the noncustodial parent. It is difficult to imagine that many parents would be willing to run such serious risks. Problematically, the Appellate Division did not clarify the specific process to be employed when a custodial parent seeks/intends to relocate within the State of New Jersey. Given the potential consequences, the safer path will almost always be to seek permission from the Court prior to moving even within the State of New Jersey. This is, of course, a problem for custodial parents. But it is also a vindication of the rights of noncustodial parents.
It is reasonable to anticipate that one or both parties will seek review by the Supreme Court of New Jersey. Therefore, this new development may not be the end of the story. Stay tuned.
INTRODUCTION TO SIGNIFICANT OTHERS
The paramount consideration in custody and visitation cases is for the “safety, happiness, physical, mental and moral welfare of the child.” [Fantony v. Fantony, 21 N.J. 525, 536 (1956).] In the case of DeVita v. DeVita, the Appellate Division found no abuse of discretion when the Trial Court entered an order, ostensibly to protect the child’s moral welfare, restricting a father from having his new girlfriend sleep over at his home when exercising parenting time with the children. The Court reasoned as follows:
“It is not for this court to determine what is moral or immoral in this context. Nor do we do so. We merely recognize that in the mother’s view the moral welfare of the children is possibly endangered if the trial judge’s restriction is not upheld. We do not decide whether the mother’s views are correct or incorrect but she has a rightful interest in the moral welfare of the children which is entitled to respect. Further it must be acknowledged that her views are not contrary to those of a substantial body of the community. We cannot say that her apprehension that the moral welfare of the children is threatened is arbitrary. While we also recognize the viewpoint of defendant father, it is evident that there is no possibility of any harm to the moral welfare of the children if the order prohibiting the presence of the female friend overnight is affirmed. Even though there is no present evidence of sexual activity on the part of the father and his female friend in his household we cannot gainsay the possibility thereof in the circumstances present.” [DeVita v. DeVita, 145 N.J. Super. 120, 128-29 (1976).]
Such orders have come to be known in Family Court as “DeVita restraints.”
Courts have subsequently, however, permitted overnight parenting time in the presence of a new significant other. For example, in the 1986 case of Kelly v. Kelly, the Trial Court permitted the non-custodial parent (father) to have the children for overnight parenting time in the presence of his girlfriend, over the objection of the custodial parent (mother). [Kelly v. Kelly, 217 N.J. Super. 147, 155 (1986).]
In the 1990s, the Trial Court in Giangeruso v. Giangeruso,the parties previously entered into a consent agreement which provided that their children would not have contact with either parent’s future love interests, if the children “expressed reluctance” to do so. In post-judgment enforcement proceedings, the Court found the parties’ consent agreement to be invalid and unenforceable, noting that such a provision placed too heavy a burden on the children to have a “final say” on the issue, in a manner contrary to the children’s own emotional welfare. [Giangeruso v. Giangeruso, 310 N.j. Super. 476 (Ch. Div. 1997).]
Over 40 years has passed since DeVita v. DeVita, and the moral ideas generally held in New Jersey have changed significantly. In the recent unpublished Trial Court decision of Mantle v. Mantle, the Court severely called into question the continued viability of the Court’s decision in DeVita v. DeVita. The Trial Judge in Mantle held as follows:
“1) Neither DeVita, or any reported decision in New Jersey thereafter, stands for the proposition that exposing a child to a new dating partner, or even allowing a dating partner to stay overnight with a child present, is per se inappropriate and contrary to the child’s welfare and best interests in every case.
2) In the present matter, as there is no evidence or allegation of any inappropriate conduct by a new girlfriend or boyfriend towards the parties’ child, the court denies enforceability of an indefinite, ‘no contact’ provision in a consent agreement prohibiting contact between a young child and any dating partner of either parent. The court will, however, enforce reasonable temporary, short-term restraints, designed to protect the child’s emotional interest following his parents’ recent separation, by providing a period of gradual transition and introduction to new parental dating partners over a reasonable period of time.”
The case was not published, and it was issued by a Trial Court (the lowest possible Court in New Jersey). It is therefore, at best, only persuasive authority. Even so, it has been widely read and discussed. Many judges agree with its reasoning, and Courts are now much more reluctant to order DeVita restraints.
ACCESS TO CHILD’S MEDICAL & EDUCATIONAL RECORDS
A parent, however, may request that the Court restrict another parent’s access to the child’s records. “A child’s parent, guardian or legal custodian may petition the court to have a parent’s access to the records limited. If the court, after a hearing, finds that the parent’s access to the record is not in the best interest of the child or that the access sought is for the purpose of causing detriment to the other parent, the court may order that access to the records be limited.” [N.J.S.A. 9:2-4.2(1)(c).]
INTERSTATE & INTERNATIONAL CUSTODY DISPUTES
The UCCJEA, in general, is a highly technical act. If you are involved in an interstate or international custody dispute, I strongly recommend hiring an attorney to assist you.
JURISDICTION UNDER THE UCCJEA. There are four critical concepts to jurisdiction under the UCCJEA: (1) initial child custody jurisdiction; (2) exclusive and continuing jurisdiction over child custody; (3) jurisdiction to modify a child custody determination; and (4) temporary emergent jurisdiction over child custody.
1. Initial Child Custody Jurisdiction
New Jersey has jurisdiction to make an initial child custody determination in four scenarios. First, New Jersey may exercise initial child custody jurisdiction if it is currently the child’s home state on the date the proceeding was commenced, or if it was the child’s home state within six months before the proceeding was commenced and the child is absent from New Jersey but a parent or person acting as a parent continues to live here. [N.J.S.A. 2A:34-65(a)(1).]
Home state is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” [N.J.S.A. 2A:34-54.]
Second, New Jersey can exercise initial child custody jurisdiction if no other state has jurisdiction under the first option, or if another state qualifies under the first option, then that other state has declined to exercise jurisdiction for reasons appropriate under the UCCJEA and: (a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and (b) substantial evidence is available in this State concerning the child’s care, protection, training and personal relationships. [N.J.S.A. 2A:34-65(a)(2).]
Third, New Jersey can exercise initial child custody jurisdiction if all courts having jurisdiction under the first and second options have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child for reasons appropriate under the UCCJEA. [N.J.S.A. 2A:34-65(a)(3).]
Fourth and finally, New Jersey can exercise initial child custody jurisdiction if no other state would have jurisdiction under the first, second, and third options. [N.J.S.A. 2A:34-65(a)(4).]
2. Exclusive and Continuing Jurisdiction
Except regarding temporary emergent jurisdiction, a New Jersey Court that has made a child custody determination under either its initial child custody jurisdiction or its jurisdiction to modify child custody determinations shall have exclusive, continuing jurisdiction over that determination until: (1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or (2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State. [N.J.S.A. 2A:34-66.]
3. Jurisdiction to Modify Determination
Except regarding temporary emergent jurisdiction, a New Jersey Court may not modify a child custody determination made by a court of another state unless the New Jersey Court has jurisdiction to make an initial determination under the first or second options for initial child custody jurisdiction (discussed above), and: (a) “the court of the other state determines [either] it no longer has exclusive, continuing jurisdiction … or that a court of this State would be a more convenient forum under section 19 of this act,” [N.J.S.A. 2A:34-71 (discussing inconvenient forum).] or (b) a court of this State or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.” [N.J.S.A. 2A:34-67.]
4. Temporary Emergent Jurisdiction
“A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” [N.J.S.A. 2A:34-68.]
INTERNATIONAL DISPUTES UNDER UCCJEA. When the UCCJEA is being applied between countries rather than states, the Courts “shall treat a foreign country as if it were a state of the United States for the purpose of applying articles 1 and 2 of this act if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations.” [N.J.S.A. 2A:34-57(a).]
“A child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this act shall be recognized and enforced under article 3 of this act.” [N.J.S.A. 2A:34-57(b).]
“A court of this State need not apply this act if the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child.” [N.J.S.A. 2A:34-57(c).]
INTERNATIONAL CHILD ABDUCTION
This treaty provides a provides a legal framework for securing the prompt return of wrongfully removed or retained children to the country of their habitual residence where a competent court can make decisions on issues of custody and the child’s “best interests” and to secure protection of access rights. The full text of the treaty is available here: [The Hague Convention.]
An explanatory report addressing the legislative history and intended meaning of The Hague Convention’s article is available here: [Perez-Vera Report (Explanatory Report).]
The Department of State has also issued its own legal analysis, which is available here: [Department of State Legal Analysis of The Hague Convention, 51 Federal Register 10494, et seq.]
Federal statute establishes procedures for bringing Hague Abduction Convention cases in United States courts, and authorizes the U.S. Central Authority to access federal databases to locate abducted children, among other provisions. [International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001, et seq.]
ADDITIONAL LAWS & REGULATIONS. In addition to the laws cited above, there are other remedies available to parents of children who have been abducted internationally, including: (1) uniform state laws; (2) criminal laws; and (3) missing children laws. Each of these categories, in addition to The Hague Convention, is discussed by the Department of State here: [Department of State – International Parental Child Abduction – Laws and Regulations.]
DEPARTMENT OF STATE WEBSITE. The Department of State is an excellent resource when a child has been abducted internationally, and its website provides a wealth of information on the subject. [Department of State – International Parental Child Abduction.]
CUSTODY ON DEATH OF A PARENT
Although custody does not automatically revert to the surviving parent, there is a heavy presumption in favor of biological parents in disputes for custody between biological parents and third parties. For more information on the legal standard, please see below: Custody Dispute Between Parent and Third Party.
GRANDPARENT VISITATION IN NEW JERSEY
“(1) The relationship between the child and the applicant;
(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.” [N.J.S.A. 9:2-7.1(b).]
Further, “it shall be prima facie evidence that visitation is in the child’s best interest if the [grandparent] had, in the past, been a full-time caretaker for the child.” [N.J.S.A. 9:2-7.1(c).]
In 2000, however, the United States Supreme Court sharply criticized broad-sweeping grandparent visitation statutes (although not New Jersey’s statute specifically), in the case of Troxel v. Granville. The U.S. Supreme Court held that such statutes interfere with parents’ fundamental liberties: “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court.” The Court explained that parents have a right to bring up their children as they see fit: “The ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ … It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” [Troxel v. Granville, 530 U.S. 57, 65 (2000).] The U.S. Supreme Court’s decision in Troxel v. Granville spawned litigation nationwide challenging the constitutionality of other grandparent visitation statutes.
In 2003, the New Jersey Supreme Court heard just such a challenge to our grandparent visitation statute. Our Supreme Court, in essence, found the Grandparent Visitation Statute as drafted to be unconstitutional and therefore added a requirement: a threshold showing of harm that can be satisfied only by “gross misconduct, unfitness, abandonment, or exceptional circumstances.” [Moriarty v. Bradt, 177 N.J. 84, 112-18 (2003).] Following such a finding, the parent is obliged to offer a visitation schedule, and if the grandparents agree to that schedule, “that will be the end of the inquiry.” If the parent and grandparents are unable to agree on a visitation schedule, the Court will implement a schedule “that it finds is in the child’s best interest, based on the application of the statutory factors.” [Moriarty v. Bradt, 177 N.J. 84, 117 (2003).] Thus, the inquiry has two steps: (1) the grandparent must make a threshold showing of harm; and (2) if that threshold showing is made, the Court will decide the dispute in a manner that serves the best interests of the child in consideration of the statutory factors listed above.
In 2016, the New Jersey Supreme Court again took the opportunity to address grandparent visitation in the case of Major v. Maguire. [Major v. Maguire, 224 N.J. 1 (2016).] The New Jersey Supreme Court recognized that, following a 2014 decision by the Appellate Division, [R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014),] the Rules of Court had been amended to establish procedures by which complex non-matrimonial proceedings should proceed:
“In amendments effective on September 1, 2015, this Court adopted three provisions recommended by the Supreme Court Family Practice Committee following the Appellate Division’s decision in R.K., supra. Rule 5:4-2(j) permits a party to request, in a complaint or counterclaim, that his or her case be designated as ‘complex.’ [Rule 5:4-2(i)] authorizes the filing of a non-conforming complaint, to which is appended a completed supplement as promulgated by the Administrative Director, when a party seeks to have a non-dissolution matter designated as ‘complex’ for purposes of [Rule 5:5-7(c)]. Rule 5:5-7(c) permits a trial court, on the application of a party or on its own initiative, to assign non-dissolution cases that ‘cannot be heard in a summary manner’ to the complex track, ‘based only on a specific finding that discovery, expert evaluations, extended trial time or another material complexity requires such an assignment.’ Applications for complex track assignment made after the initial hearing may be considered ‘upon presentation of exceptional circumstances.’
In cases given the ‘complex’ designation, Rule 5:5-7(c) requires the trial court to conduct a case management conference and to review with the parties some of the discovery, expert opinion, and motion practice issues identified by the Appellate Division in R.K. The Rule imposes no such requirement for matters that are not deemed ‘complex’; such cases are handled as summary actions.” [Major v. Maguire, 224 N.J. 1, 20-21 (2016).]
The Court held that, first, the procedures in Rule 5:5-7(c) strike the proper balance between permitting grandparents a meaningful opportunity to make their case and refraining from unnecessary intrusion into the lives of parents and their children. Second, when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint. Third, in the event that fact discovery is required, the court and the parties should work together to coordinate and streamline the process, and any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. Fourth, expert testimony may be necessary for grandparents to meet their burden. In determining whether expert testimony is appropriate, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and parties in suggesting a resolution of the dispute. Fifth, even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm. Sixth, and finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution. [Major v. Maguire, 224 N.J. 1, 22-25 (2016).]
CUSTODY DISPUTE BETWEEN PARENT AND THIRD PARTY
In general, the standard for determining a dispute between a parent and a third party is the same as the standard for determining a dispute between a parent and a grandparent. (Grandparents are, of course, third parties insofar as they are not the child’s parents.) The only meaningful distinction seems to be that when determining the child’s best interests in a dispute between a parent and a third party, the Court will use the factors under N.J.S.A. 9:2-4(c), but when determining the child’s best interests in a dispute between a parent and a grandparent, the Court will use the factors under N.J.S.A. 9:7-2.1(b). Moreover, it is unclear to what extent the procedural requirements set forth in the section of the Divorce Guide above on “Grandparent Visitation in New Jersey” also apply to disputes between parents and third parties. While it is likely that the procedural requirements discussed above are equally applicable, it is also plausible that grandparents are permitted some additional procedural considerations in light of their biological relationship to the child. I am not aware of any Court having resolved the issue at the time of writing this section (January 14, 2017).
That being said, just as with grandparents, the Court will use a two-step inquiry to determine whether a third party should be granted custody rights over a parent’s objection. During that process, the burden to prove a right to custody over parental objection rests with the third party. First, the third party has to prove that the presumption in favor of a legal parent has been overcome by evidence of parental abandonment, unfitness, or gross misconduct, or that there are exceptional circumstances (e.g., the third party is a psychological, even if not biological, parent to the child). Once that presumption has been overcome, the Court will determine the dispute, as with any other custody dispute, in a manner consistent with the best interests of the child.
“The standard that controls a custody dispute between a third party and a parent involves a two-step analysis. The first step requires application of the parental termination standard or a finding of exceptional circumstances. Although an award of custody to a third party does not involve a termination of all parental rights, such an award destroys any pretense of a normal parent-child relationship and eliminates nearly all of the natural incidents of parenthood including everyday care and nurturing which are part and parcel of the bond between a parent and child. It is cardinal [in our society] that the custody, care and nurture of the child reside first in the parents. Because the right to custody is a fundamental one protected by the constitution, the parental termination or exceptional circumstances standard is required to pass constitutional muster in this type of custody dispute. … [W]hen a third party, such as a stepparent, establishes psychological parentage with the child, the third party stands in the shoes of a natural parent. That means that when the exceptional circumstances prong is satisfied, for example by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child’s best interest test articulated in N.J.S.A. 9:2-4(c).” [Watkins v. Nelson, 163 N.J. 235, 253-54 (2000).]
Then, “[i]f either the statutory parental termination standard or the exceptional circumstances prong is satisfied, the second step requires the court to decide whether awarding custody to the third party would promote the best interests of the child. A child’s best interests standard does not contain within it any idealized lifestyles. It can never mean the better interest of the child. It is not a choice between a home with all the amenities and a simple apartment, or an upbringing with the classics on the bookshelf as opposed to the mass media, or even between parents or providers of vastly unequal skills. That said, the point to be emphasized is that the best interest of the child cannot validly ground an award of custody to a third party over the objection of a fit parent without an initial court finding that the standard for termination of the rights of a non-consenting parent or the exceptional circumstances prong has been satisfied.” [Watkins v. Nelson, 163 N.J. 235, 254 (2000).]
The statutory factors for determining a child’s best interests under N.J.S.A. 9:2-4 are as follows:
- 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; and
- The age and number of the children. [N.J.S.A. 9:2-4(c).]
PARENTAL ALIENATION IN NEW JERSEY
Although PAS remains controversial among the psychological community, a limited recognition was incorporated into the most recent version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM”). The DSM-V is the latest version of the Manual as of the date of this writing (January 14, 2017), and it contains a new and broader definition of child psychological abuse: “non-accidental verbal or symbolic acts by a child’s parent or caregiver that result, or have reasonable potential to result, in significant psychological harm to the child.” This definition is, of course, broad enough that parental alienation behavior may fall within its reach. The DSM-V also includes reference to “Parent-Child Relational Problems.” The term is, again, broader than parental alienation, but it seems to imply its existence: “Examples of behavioral problems include inadequate parental control, supervision, and involvement with the child; parental overprotection; excessive parental pressure; arguments that escalate to threats of physical violence; and avoidance without resolution of problems. Cognition problems may include negative attributions of the other’s intentions, hostility toward or scapegoating the other, and unwarranted feelings of estrangement.” To many, these inclusions spell out parental alienation even if they do not state its name. [Barbara Kay, National Post, “Teaching children to hate the ex” (May 23, 2013).]
If deemed appropriate by the Court, the occurrence of parental alienation may, of course, be considered as a factor in deciding a custody dispute. The Court might conceivably enter an order restraining both parents from engaging in alienating behavior, and then enforce that custody order by requiring “temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children[.]” [R. 5:3-7(a).]
Additionally, in limited circumstances, it may be possible to sue for money damages as a result of parental alienation. At least one appellate court in New Jersey has held that parents may sue each other for money damages on the grounds of parental alienation when the conduct is so outrageous as to constitute the well-established civil claim known as “intentional infliction of emotional distress.” [Segal v. Lynch, 413 N.J. Super. 171 (2010).] To constitute intentional infliction of emotional distress, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” [Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988).] The Court in Segal v. Lynch cited examples of conduct arguably constituting parental alienation that may rise to the level of intentional infliction of emotional distress: “cases involving prolonged parental abduction, where children are intentionally removed to foreign jurisdictions for the purpose of frustrating the innocent parent’s custodial rights, or intentional false accusations of parent/child sexual abuse, are but two examples of factual scenarios that may satisfy the outrageous conduct requirement[.]” [Segal v. Lynch, 413 N.J. Super. 171 (2010).]
The Court also, however, found that the specific allegations raised in the case it was reviewing did not rise to the level of intentional infliction of emotional distress:
“Here, the gravamen of plaintiff’s case rests on defendant’s actions after she relocated to this State in 2006. According to plaintiff, defendant established a residence with the children in this State without his knowledge or consent, blocked all forms of communications between him and the children, and matriculated the children in a local school district under her surname. All this was intentionally done by defendant as a means of unlawfully depriving plaintiff of his parental rights to see and enjoy a relationship with his children. This period of isolation lasted for approximately three months. The facts recited, on their face, do not constitute a cause of action for intentional infliction of emotional distress as a matter of law.
As a matter of public policy, the grievances raised by plaintiff in this suit must be brought before and addressed by the Family Part as part of an action for custody or parenting time, where the governing principle for adjudication will be the best interests of these two children. In these matters, the Family Part has both the expertise and the power to correct abuses by one parent against the other, while shielding the children from the type of emotional injury that is inextricably linked to a civil action for damages.” [Segal v. Lynch, 413 N.J. Super. 171 (2010).]
If you allege conduct sufficiently outrageous as to constitute intentional infliction of emotional distress, “[b]ecause such claims raise issues that are uniquely suited to the function and expertise of the Family Part, they must be brought as part of an action seeking custody or parenting time under the Family Part’s well-established ancillary jurisdiction as recognized by the Court[.]” [Segal v. Lynch, 413 N.J. Super. 171 (2010).]
SEALING THE RECORD OF A CUSTODY DISPUTE
THE NEW JERSEY DIVORCE GUIDE (2020)
The information set forth below is a detailed review of New Jersey divorce law with citations to relevant legal authorities, including statutes and case law. Of course, in the midst of a contentious divorce battle, an in-depth explanation of a specific issue may be critical. But would you like a more concise, introductory overview to the New Jersey divorce process? We have that too! Click below for a free, downloadable copy of the New Jersey Divorce Guide (2020).
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
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- American Bar Association - Family Law Section
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Appellate Practice Special Committee
- Somerset County Family Law Practice Committee
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