Law Lessons from EMMA J. WALDEN V. DARYL S. PAYNE, App. Div., A-2347-08T3, January 29, 2010:

Modification of an order addressing custody and parenting time is permitted because the law recognizes that “the conditions which would satisfy the best interests of the child during all of its minority [cannot] be conclusively determined in one decree.” Borys v. Borys, 76 N.J. 103, 111 (1978). Nonetheless, a parent cannot obtain a modification simply because that parent does not like the arrangement in place. The focus of every judicial determination about custody and parenting time is “on the ‘safety, happiness, physical, mental and moral welfare’ of the children.” Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

To obtain a modification of an arrangement for parenting time specified in a court order, the parent must establish that circumstances have changed since the order in place was entered. The parent must also establish that, as a result of the new circumstances, the present arrangement is adversely affecting the welfare of the child. See Beck v. Beck, 86 N.J. 480, 496 n.8 (1981); Hand, supra, 391 N.J. Super. at 105; Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

Under those standards, the parent seeking the change must establish: 1) the present schedule for custody and parenting time under the current order; 2) the circumstances that changed after that order was entered; and 3) the adverse effect of the new circumstances and current parenting arrangement on the child’s best interest. Sheehan, supra, 51 N.J. Super. at 287-88.

In presenting the relevant evidence to the trial judge, the parent should understand that the judge must disregard “[c]onclusory allegations” about changes in circumstances and their impact on the child. See Lepis v. Lepis, 83 N.J. 139, 159 (1980) (discussing the inadequacy of unsubstantiated allegations on an application to modify support). Testimony or other evidence establishing facts to support the allegations is essential. Hand, supra, 391 N.J. Super. at 112; see Giangeruso v. Giangeruso, 310 N.J. Super. 476, 482 (Ch. Div. 1997).

In this case, the Appellate Division declared that it is not aware of any published decision in which a court has approved restrictions on parenting time that does not include overnights solely on the basis of the custodial parent’s “moral” objection to contact with the other parent’s exposing the child to his or her dating partner. Compare DeVita v. DeVita, 145 N.J. Super. 120 (App. Div. 1976) (affirming, over a dissent, an order disapproving overnight visitation on that ground) with Giangeruso, supra, 310 N.J. Super. at 481-82 (concluding that restrictions on exercise of parenting time in the presence of a significant other required a greater showing of harm regardless of the wishes of the parties six- and nine-year-old children); Kelly v. Kelly, 217 N.J. Super. 147, 154-55 (Ch. Div. 1986) (denying request to restrict father’s overnight visitations based on mother’s moral objections to his cohabitation).

In ruling on an application to modify parenting time, the judge must consider the evidence and decide whether the parent seeking a new arrangement has met the legal standards discussed above. That task requires the judge to discuss the evidence, resolve factual disputes and state why the parent seeking the change established or failed to establish a reason for altering the parenting arrangement. R. 1:7-4.

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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