Child Custody Modified After Parties Failed To Abide By Agreement

In Myers v. Myers, the Defendant appealed from the child custody and child support provisions issued in a 2013 final divorce judgment following a trial. The Appellate Division affirmed the decision of the lower court after a careful review of the issues and the record. The parties in this case participated in a three day divorce trial in 2013. The final divorce judgment incorporated a partial stipulation of settlement which was filed in 2013. This partial settlement resolved many issues between the parties but left the issue of custody of their child and child support unresolved. Prior to the trial, in 2009, the parties executed a Consent Order that addressed the custody of their son. The child resided with each party on alternating weeks and on the weeks that each parent did not have the child they exercised parenting time on Tuesday and Thursday evenings. At trial, the Defendant proposed the same parenting time arrangement as was negotiated in the Consent Order. The Plaintiff sought a different schedule and requested that she be named the parent of primary residence. Her argument was that the prior arrangement never really took effect because after one month the Defendant moved back into the house with her and her son and that she had always been the one to take care of their son. She contended that the Defendant did very little with their son except to take him to practices and games. After the trial, the Court noted that after reviewing the relevant case law, it was guided by N.J.S.A. 9:2-4 in making a custody determination. The judge found the Plaintiff's testimony to be credible and found that the Defendant did not cooperate in the Plaintiff's attempt to negotiate an agreed upon parenting time schedule. The judge determined that from the "defendant's own testimony and his own demeanor" that a shared custody arrangement would not be appropriate. The judge awarded primary residential custody to the Plaintiff. The Defendant was given 104 overnights a year with his son and from this determination the court established that the Defendant's child support obligation would be $143 a week. N.J. Court Rule 5:6A. The Defendant appealed. According to the Appellate Division, regarding custody, the statute requires that the court consider multiple factors in determining the best interests of the child. N.J.S.A. 9:2-4(c). A court is required to place on the record the factors it considers consequential in reaching a custody decision, as the judge in this case had done. Monte v. Monte, 212 N.J. Super. 557, 565, 515 A.2d 1233 (App. Div. 1986). In this case the judge expressed a concern in the lack of cooperation between the parties mostly due to the Defendant's "problematic" behavior. The Appellate Division found that the Family Court judge clearly had the child's best interests in mind when he made the custody decision and subsequently the child support award. Therefore, the Appellate Division affirmed the decision of the lower court. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you feel that it may be beneficial to you to submit an application to the court for a modification of your current child custody or parenting time arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, divorce or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Post-Judgment Custody To Father Allows Child To Stay In Same School

In a recent Essex County post-judgment custody modification case, Stevens v. Shah, the Plaintiff, Jennifer Stevens appealed from a 2012 Family Court order that directed the parties to share joint legal custody of their child and awarded temporary physical custody of the child to the father, Amir Shah, so that the child could continue to attend the same school he had been in prior to the divorce. In August of 2012, an Essex County Family Court Judge issued an order directing that the Family Division conduct a best interests investigation as to the parties' child to assist in determining custody. Later, the judge held a hearing and took the testimony of the parties. After reviewing the best interests analysis and considering the testimony, the judge issued the aforementioned order. In the order the judge indicated that temporary physical custody of the child shall remain with the Defendant, in part, so that the child could remain in the Union school system. The Plaintiff was granted very liberal parenting time with her child. The judge stated that his decision was based upon the fact that when the court applied the best interest factors found in N.J.S.A. 9:2-4(c) - most elements were equal except that the child's continuity of education would be better served by allowing him to continue to go to school in Union, New Jersey. The Plaintiff appealed from this decision. The Appellate Division began its analysis by stating that a party wishing to modify a custody arrangement must demonstrate a "change in circumstances that affect the welfare of the child," according to the reasoning set forth in Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). After a showing of changed circumstances is made, the court must then decide whether the requested modification is within the best interests of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). To accomplish this the court must consider the best interest factors as set forth in N.J.S.A. 9:2-4(c) and must make a record "referencing the statutory factors it has considered and the reasons for its custody determination." J.A. v. A.T., 404 N.J. Super. 132, 145 (App. Div. 2008). In the current case, the Appellate Court was satisfied that all of the above mentioned requirements were satisfied. Although, it held that because its decision was grounded in the child's best interest of continuity for the kindergarten year, and since all other factors were determined to be equal, the Plaintiff was permitted to seek physical custody without asserting changed circumstances after the school year. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment regarding such issues as child custody, alimony, or your child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, child custody, divorce, alimony, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Change Of Custody In Emergent Situations

The most common legal methods and remedies for a change in custody may not always be the best course of action in emergent situations in which a child's health or safety may be at risk. In New Jersey, issues regarding child custody and visitation are typically among the most difficult in family law because of the extreme emotions that arise for all of the parties involved. In actuality, most parents usually do not even realize that a change in custody is required until an emergency situation requires quick and instantaneous legal intervention to prevent physical or emotional harm to a child or children. The usual legal channels for a change in custody may not provide a child or a parent with the swift remedy that an emergency situation requires. In the state of New Jersey, a parent whether in a divorce, separation, or non-dissolution situation may petition the court to modify a child custody arrangement at any time if circumstances have changed or other issues require an amendment to an existing order or agreement. This process involves either the party or his or her lawyer submitting motions to the court requesting the modification, and this could take weeks or even months to finalize. If a child is in a situation where one parent is abusing drugs and/or alcohol, is battling mental health issues, exposing the children to a sex offender or other abusive individual or is in any other way placing the child's safety at risk - a month, even a week, may simply be too long to wait. For such emergency situations in New Jersey, a parent, his or her attorney, or even a DYFS caseworker can seek an emergent hearing or an emergent court order requesting an immediate change in custody for the protection of a child. In these instances, a court will evaluate what is in the best interests of the child and what is required to immediately protect the child from being in a situation of significant risk of harm. Keep in mind, a court will not be inclined to grant an emergent hearing or issue an emergent order to change custody unless the situation clearly dictates that there is no other available remedy to address the situation. Further, even in the event that the court changes custody on an emergent basis, a hearing will be scheduled to re-assess the emergency modification shortly after the emergent order was issued. If you believe your child is in harms way and an emergent hearing is in order to protect them or someone has wrongly accused you of placing your child in danger file for an emergency change in custody you should obtain experienced legal counsel immediately. For more information about custody & visitation, DYFS, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Religion and Education Decisions To Be made By Both Parents Regardless Of Custody

In all custody and parenting matters, the best interests of the child are to be considered ahead of all by the court. The best interests of the child also must prevail when the court is forced to decide disputes relating to major decisions in the child's life such as medical, educational or religious matters. In the recent case of Phillips v. Emerson, the parents were born and raised under different religions but neither practiced their religion during the marriage. When the parties divorced, Phillips was named the parent of primary residence and Emerson was named the parent of alternate residence. Phillips later remarried and began to participate more in religious activities with her new husband. Approximately 10 years after the parties' divorce, Phillips enrolled the parties' child in Catholic school without discussion with or consent from Emerson. Emerson raised issue with the court on the basis that the enrollment in Catholic school was intended solely as a means to further distance him from the parties' daughter due to his Jewish upbringing. The NJ Appellate Division held that a plenary hearing was required to determine what was in the best interests of the child and that neither party should unilaterally make a decision of such import. If you are seeking or fighting a change in custody, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family or juvenile law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.