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Even where the parent and children enjoy a strong, close relationship, when seeking joint custody after an initial custody determination has been made, even a parent enjoying such a relationship must satisfy the same burden of proof as applies to anyone seeking to change a custody decree, namely, a change of circumstances warranting modification

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March 6, 2013 at 7:02 am


Law Lessons from ANTOINETTE CHANDLER v. AARON CHANDLER, App. Div., A-1775-11T2, January 31, 2013:

A judge’s custody determination must be based on the best interests of the child. N.J.S.A. 9:2-4; Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The Appellate Division defers to the Family Part judge’s expertise. Cesare v. Cesare, 154 N.J. 394, 412 (1998); Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003) (discussing deference accorded to trial court’s decision regarding alleged changed circumstances supporting request to modify custody).

“A judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances[.]” Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981), superseded by statute on other grounds, N.J.S.A. 2A:17-56.23a, as recognized in Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995). However, the moving party bears the burden to establish a prima facie case for modification by showing there has been a change in circumstances affecting the children’s welfare. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 1997); Mastropole, supra, 181 N.J. Super. at 136 (proponent of change bears the burden); see also Beck v. Beck, 86 N.J. 480, 496 n. 8 (1981) (even where the parent and children enjoy a strong, close relationship, “[W]hen seeking joint custody after an initial custody determination has been made, even a parent enjoying such a relationship must satisfy the same burden of proof as applies to anyone seeking to change a custody decree, namely, a change of circumstances warranting modification.”). Conclusory allegations do not suffice. Hand, supra, 391 N.J. Super. at 112 (citing Lepis v. Lepis, 83 N.J. 139, 159 (1980)).

Discovery is inappropriate absent a showing of a prima facie case. See Lepis, supra, 83 N.J. at 157 (applying principle to modification of alimony and child support based on changed circumstances). A plenary hearing is required only if there are genuine and substantial issues of fact regarding the children’s welfare. Compare, e.g., Mackowski v. Mackowski, 317 N.J. Super. 11 (App. Div. 1998) (reversing and remanding for plenary hearing where “trial court’s order was based on its evaluation of conflicting affidavits and adoption of the assertions of one party over the other without the benefit of a plenary hearing”), superseded on other grounds by R. 5:8-6, with Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.) (no plenary hearing was required to authorize mother’s relocation of her children out of state, over the father’s objection, where no material factual disputes were demonstrated), certif. denied, 187 N.J. 81 (2006). However, if a “genuine and substantial issue” concerning parenting time exists, the court must first refer the parties to mediation in advance of a hearing. R. 5:8-1.

In assessing whether there are requisite changed circumstances, the court must consider the circumstances that existed when the original custody order was entered. Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958). With those facts in hand, the court can then “ascertain what motivated the original judgment and determine whether there has been any change in circumstances,” and evaluate “the bona fides of the person who seeks a modification upon the grounds of change in his status of fitness.” Id. at 288. Also, “[i]n assessing a claim of changed circumstances deference is given to the length and stability of the existing custody relationship.” M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979). 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, supra, 391 N.J. Super. at 105.



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