Law Lessons from R.K.B. V. C.W.B., App. Div., A-1613-08T1, February 8, 2010:

A party seeking to modify custody must demonstrate changed circumstances that affect the best interests of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007).

A plenary hearing is required, under Rule 5:8-6, only when the affidavits and certifications of the parties show the existence of a genuine and substantial factual dispute regarding the welfare of the child, and the trial court determines that a plenary hearing is necessary to its resolution. Ibid. (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)); see Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding “a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary,” and noting that “[w]ithout such a standard, courts would be obligated to hold hearings on every modification application”).

No reported decision has ever concluded that the mere passage of time, standing alone, warrants a plenary hearing. Were that the case, courts would be required to spend time fruitlessly taking testimony merely to conclude that the only thing that had changed was the child’s age.

In Lepis, supra, 83 N.J. at 159, the Court held that “[i]n determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties,” but should consider “[o]nly [those] statements to which a party could testify . . . .”

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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