A plenary hearing must be conducted when a party seeking to modify a custody order demonstrates that “due to a substantial change in circumstances from the time that the current custody arrangement was established, the best interests of the child would be better served by a transfer in custody.” Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); see also R. 5:8-6.

The moving party must demonstrate that there is a genuine and substantial factual dispute regarding the welfare of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Thus, if the trial court determines that there exists a factual dispute regarding the welfare of the child, a plenary hearing is necessary. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1975).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

In removal cases, where the custodial parent seeks to relocate the child, the court considers the interests of the parents and the child. Baures v. Lewis, 167 N.J. 91, 115-16 (2001).

Consequently, in deciding which parent should be awarded primary custody, the court must apply the best interests standard to determine which parent can better advance the child’s welfare. Id. at 115.

The Baures standards is only applicable in instances where the relocating parent is the parent of primary residence. See O’Connor v. O’Connor, 349 N.J. Super. 381, 398 (App. Div. 2002).

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.

“A judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.” Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958)).

The party seeking to modify a custody judgment bears the burden of proof. Ibid. Moreover, the moving party must demonstrate a change in circumstances affecting the welfare of the child. Sheehan, supra, 51 N.J. Super. at 287-88.

Custody determinations are governed by the bests interests of the child standard. Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). The primary consideration is the happiness and welfare of the child, specifically the “safety, happiness, physical, mental and moral welfare of the child.” Sheehan, supra, 51 N.J. Super. at 291.

Judicial-custody determinations are controlled by N.J.S.A. 9:2-4, which requires the court to take into consideration the following factors prior to making an award of custody:

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. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

[Ibid.]

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The Family Part should be cautious in any custodial proceeding not to penalize the father for discharging his military obligations in the service of our country, ^[1] or to make the fact of that service a pivotal consideration in awarding or denying residential custody. See Faucett v. Vasquez, 411 N.J. Super. 108, 130-34 (App. Div. 2009) (detailing the various custodial dilemmas posed by “the current state of our armed forces and the military commitments requiring the deployment and re-deployment of our nation’s citizen-soldiers”).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

1. The Servicemember’s Civil Relief Act, 50 U.S.C.A. App. §§ 501-96 (“the SCRA”), and the New Jersey Soldiers’ and Sailors’ Civil Relief Act of 1979, N.J.S.A. 38:23C-1 to -26, provide for a military stay of court proceedings while a litigant is in the military.

Rule 5:8-6, which governs the trial of custody issues, provides that “the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren).” Thus, the clear language of the Rule provides that “the judge’s interview with the child is discretionary rather than mandatory irrespective of the age of the child.” Pressler, Current N.J. Court Rules, comment 1.4.3. on R. 5:8-6 (2010).

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.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, was adopted by New Jersey in 2004, see Table of Jurisdictions Wherein Act Has Been Adopted (preceding N.J.S.A. 2A:34-53), to replace the former Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52 (repealed).

The UCCJEA “should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case.” Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007).

One of the primary objectives of the UCCJEA was to “prioritize[] home state jurisdiction” over other bases for a state assuming jurisdiction of a child custody dispute. UCCJEA, Prefatory Note, 9 (Part IA) U.L.A. 651 (1999); see also id. § 201 cmts. 1 & 2, at 672. This objective was noted in the sponsor’s statement to the legislation by which New Jersey adopted the UCCJEA. S. Judiciary Comm., Statement to Senate Committee Substitute for Senate Bill No. 150 (2004). (“[The UCCJEA] gives priority to the home state as a ground for taking jurisdiction.”) (reprinted following N.J.S.A. 2A:34-53). Therefore, any ambiguity in the UCCJEA should be resolved in light of this legislative objective. See State v. Drury, 190 N.J. 197, 209 (2007).

The section of the UCCJEA that determines which state has initial child custody jurisdiction provides in pertinent part:

a. . . . [A] court of this State has jurisdiction to make an initial child custody determination only if:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction . . . and:

(a) the child and the child’s parents, or the child and at least one 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[.]
. . . .

b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.

[N.J.S.A. 2A:34-65.]

Thus, unless the home state declines jurisdiction, a New Jersey court cannot assume “significant connection” jurisdiction over an initial child custody determination under N.J.S.A. 2A:34-65(a)(2) if another state has jurisdiction under N.J.S.A. 2A:34-65(a)(1) either as (1) the child’s home state or (2) the child’s home state within six months prior to the commencement of the proceeding and the child is absent from the home state but a parent continues to live in that state.

N.J.S.A. 2A:34-54 defines “home state” 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.”

Home state jurisdiction is established under N.J.S.A. 2A:34-65(a)(1) if a state either “[1] is the home state of the child on the date of the commencement of the proceeding, or [2] was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State.”

The definition of “home state” in N.J.S.A. 2A:34-54 cannot reasonably be read to negate the clear intent of N.J.S.A. 2A:34-65(a)(1) to confer home state jurisdiction, especially in light of the UCCJEA’s objective to “prioritize[] home state jurisdiction” over child custody disputes. UCCJEA, supra, Prefatory Note at 651.

The reasons for concluding that the apparent inconsistency between the sections of the UCCJEA codified as N.J.S.A. 2A:34-54 and N.J.S.A. 2A:34-65(a)(1) should be resolved in a manner that gives full effect to both factual predicates for home state jurisdiction under N.J.S.A. 2A:34-65(a)(1):

Considerable confusion has arisen in this matter regarding how to analyze the children’s “home state” for purposes of determining jurisdiction. Such confusion seems understandable in light of the apparent contradictory language set forth in the Montana statutes. [Montana's version of N.J.S.A. 2A:34-65(a)(1)] provides that Montana has jurisdiction to make an initial child custody determination if it is the child’s home state “within six months before” the commencement of the child custody proceeding. By contrast, “home state” as defined under [Montana's version of N.J.S.A. 2A:34-54] requires a child to have lived in Montana for “at least 6 consecutive months immediately before the commencement of a child custody proceeding.”
. . . .
The drafters intended that the UCCJEA should be construed to promote one of its primary purposes of avoiding the jurisdictional competition and conflict that flows from hearings in competing states when each state substantively reviews subjective factors, such as “best interest,” for purposes of determining initial jurisdiction. We thus resolve any statutory conflict in the application of home state jurisdiction in a manner consistent with the UCCJEA’s intent of strengthening the certainty of home state jurisdiction.

As a result, we hold that “home state” for purposes of determining initial jurisdiction under [Montana's version of N.J.S.A. 2A:34-65(a)(1)] is not limited to the time period of “6 consecutive months immediately before the commencement of a child custody proceeding.” The applicable time period to determine “home state” in such circumstances should be “within 6 months before the commencement of the [child custody] proceeding.” This interpretation promotes the priority of home state jurisdiction that the drafters of the UCCJEA specifically intended.

[Stephens v. Fourth Judicial Dist. Court, 128 P.3d 1026, 1028-29 (Mont. 2006).]

See related Blog Post by Robert A. Epstein, Esq.

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

Legal custody of a child, as opposed to physical custody, has been defined as “the legal authority and responsibility for making ‘major’ decisions regarding the child’s welfare . . . .” Beck v. Beck, 86 N.J. 480, 486-87 (1981).

In custody determinations, “the best interests of the child is [the] polestar” by which the court should be guided. Id. at 499. In making an award of custody, whether physical or legal,

the court shall consider but not be limited to the following factors: the parents’ ability to agree, communicate and cooperate in matters relating to the child; . . . the interaction and relationship of the child with its parents . . . ; 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; . . . [and] the fitness of the parents . . . .

[N.J.S.A. 9:2-4.]

In Grover v. Terlaje, 379 N.J. Super. 400, 407 (App. Div. 2005), the court noted that “the presumption in favor of awarding custody to ‘the non-abusive spouse’ embodied in N.J.S.A. 2C:25-29b(11) ^[1] relates to legal as well as physical custody, although the presumption weakens as time passes without any conduct which can be said to jeopardize the ‘non-abusive spouse’ or the child.” Clearly, a hearing is necessary to make this determination.

Where the defendant did “not claim the FRO should be vacated . . . . He only [sought] joint legal custody and the related ability to participate in decision making relating to his son.” the court held that “the same principles” governing an application to dissolve an FRO apply because “[t]he joint legal custodians must be able communicate about the child . . . .” Id. at 409.

Those “principles,” as set forth in Carfagno v. Carfagno, 288 N.J. Super. 424, 434-35 (Ch. Div. 1995), include the following: “whether the victim fears the defendant”; “the nature of the relationship between the parties today”; “whether the defendant has a continuing involvement with drug or alcohol abuse”; “whether the defendant has engaged in counseling”; “the age and health of the defendant”; and any “other factors deemed relevant by the court.”

A defendant’s request

must be analyzed in the context of the totality of all circumstances; not only the facts now alleged but also, the past history of domestic violence which can affect the context of any dispute. The court must review and weigh all interests, assessing the parties’ positions as presented by the evidence and must specifically set forth findings of fact in balancing all interests.

[Finamore v. Aronson, 382 N.J. Super. 514, 524 (App. Div. 2006).]

See related Blog Post by Eric S. Solotoff, Esq.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

1. Upon a finding of domestic violence, N.J.S.A. 2C:25-29(b)(11) authorizes a judge to enter an “order awarding temporary custody of the minor child[,]” and provides that the judge “shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.”

“New Jersey courts are to give full faith and credit to child custody orders issued from foreign nations except when ‘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.’” J.A. v. A.T., 404 N.J. Super. 132, 143 (App. Div. 2008) (quoting N.J.S.A. 2A:34-57(c)). A foreign custody order can be registered in New Jersey, N.J.S.A. 2A:34-79(a) and (b), and the validity of such an order may only be challenged if (1) the foreign court lacked jurisdiction; (2) the foreign order “has been vacated, stayed, or modified”; or (3) the challenging party never received proper notice. N.J.S.A. 2A:34-79(d).

In cases decided prior to the enactment of the UCCJEA, New Jeresey courts have considered a party’s wrongful conduct in securing a foreign court’s jurisdiction, and whether the foreign court’s judgment should be accorded full faith and credit in light of that conduct. For example, in Van Haren v. Van Haren, 171 N.J. Super. 12, 13-16 (App. Div. 1979), a case that pre-dated both the UCCJEA, and its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52 (repealed December 13, 2004), th ecourt considered whether New Jersey courts were obligated to give full faith and credit to a South Carolina custody award made in favor of the defendant father who had abducted the children from New Jersey, even though the plaintiff mother had herself subsequently abducted the children and returned them to New Jersey. Applying the principles of the UCCJA, which had been enacted after the trial court’s decision, the court concluded that “South Carolina lacked UCCJA jurisdictional prerequisites in that the father who brought the petition there had wrongfully taken the children from New Jersey . . . .” Id. at 20. As a result, the court affirmed the trial court’s decision that awarded custody to the mother despite her violation of the South Carolina order. Id. at 23.

In Swire v. Swire, 202 N.J. Super. 289, 295 (App. Div. 1985), a case decided under the UCCJA, the court concluded that the New York court’s exercise of jurisdiction and award of custody to the defendant father was not “entitled to recognition and enforcement . . . because the jurisdictional prerequisites . . . were not met . . . .” Despite recognition that the plaintiff mother had violated the custody order, we remanded the matter to the trial court to determine whether New Jersey “should assume jurisdiction notwithstanding the bar of N.J.S.A. 2A:34-36 because it is required to in the interests of the two . . . children.” ^[1] Id. at 296.

The UCCJEA specifically addresses the converse situation, i.e., where a parent seeking to invoke New Jersey’s jurisdiction engages in wrongful conduct. N.J.S.A. 2A:34-72(a) provides that a “court shall decline to exercise its jurisdiction” if a party “invoking the jurisdiction has engaged in unjustifiable conduct . . . .”

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1. N.J.S.A. 2A:34-36 was the predecessor to section 72 of the UCCJEA

Under the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the UCCJEA), New Jersey is not the “home state” of a child who had not resided in New Jersey for six months prior to the initiation of the action. See N.J.S.A. 2A:34-54 (defining home state for purposes of the UCCJEA).

NOTE:My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

In the instant case, where there was a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent’s right to visitation/parental access, the mother was sentenced to a period of incarceration for six weekends.

See related Blog Posts HERE and HERE and HERE.

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